How to mobilize the combination of traditional culture and modern rule of law

China's legal culture has a long history and has never been interrupted, which is rare among the ancient civilizations in the world. Ancient Chinese legal culture, whether in theory, system or behavior, has rational factors that span time and space. Ancient Chinese legal culture was based on humanitarianism, "Moral education was the foundation of politics and religion, and punishment was used for politics and religion", which attached great importance to the consistency of law, reason and emotion. Because we attach importance to people, value and life, we put forward the viewpoint of "teaching by law, civil punishment must be taught" in the legal system, and reducing crimes by "teaching" first, which is the excellent spirit of ancient legal culture in China.

For example, the decision-making power of the ancient death penalty has long been vested in the central government, and this provision has been running through since the Han Dynasty. A similar system is clearly stipulated in the code, which is rare in the history of world legal system and is a legal embodiment of attaching importance to people and putting people first. To this end, he quoted some viewpoints of ruling the country by law in Shenzi, Hanfeizi and Shangjunshu, and thought that theoretically, the thoughts of legalists have yet to be explored, and some of them are very valuable.

Guo Daohui, a famous jurist, proposed that we should not only revive the positive part of our traditional culture, but also prevent the restoration of "the feudal autocratic tradition in China legal culture or the whole China cultural tradition".

Chen Guangzhong, a tenured professor at China University of Political Science and Law and an expert in criminal procedure law, believes that we should not be one-sided in the face of traditional culture. From the mainstream, China's feudal legal system culture is a feudal autocratic culture with the supremacy of imperial power. Mencius' people-oriented thought is very distinct, but it was not accepted by the rulers at that time, but we should carry it forward now; Mainstream absolutism and even cruel culture are not desirable. You can't treat the baggage and dross of the past as good things. This kind of thing is hard to get rid of, such as extorting a confession by torture. We have to pay attention to this problem when studying and inheriting ancient cultural traditions.

Qin Hui, a famous historian and professor of Tsinghua University, said in his speech that in China, whether advocating Confucius and Mencius' benevolence and morality, or advocating freedom, democracy and the rule of law in the west, a common enemy is the autocratic centralization represented by the "Qin system".

Today, if you don't want China to break away from the Qin system, it's not a real Confucianism, and if you don't want China to break away from the Qin system, it's not a real rule of law. The May 4th Movement has brought us a very important revelation, that is, it is not a question of whether "anti-tradition" is excessive or insufficient, but that we should really be anti-tradition, but we should distinguish which part to oppose and which to keep.

Yi, director of the Central Compilation Bureau of China, believes that China's culture is profound, but it is based on experience and human feelings. China's ethical society is not based on the understanding of freedom and equality. Starting from Confucius, he advocated the idea of "no litigation".

Fei Xiaotong wrote in Native China: China is not a lawless society, but a gemeinschaft, an acquaintance society, which needs no litigation. This culture embodies our traditional views on law, civilians, officials and rulers.

Li Deshun, a tenured professor at China University of Political Science and Law, put forward two views on how to treat China's traditional culture.

First, don't push all cultures to the ancients, so we will also push our cultural rights and responsibilities to the ancients. We should base ourselves on China's theory and practice and focus on the whole nation.

Second, if many individual performances can be accepted or implemented by the whole nation of this country, they should not be simply attributed to individuals. When reviewing history, it is important to reflect on what everyone once recognized and accepted from a cultural perspective, and to determine the rights and responsibilities of our realistic subject from this perspective.

What are the conceptual differences between Chinese and western cultural traditions?

Speaking of culture and "rule of law", the influence of western culture and the comparison between Chinese and western cultures are inevitable.

Lou Yulie, a senior professor in the Department of Philosophy of Peking University, explained the differences between Chinese and Western cultures ruled by law from the perspective of religious culture: in the West, man and God belong to two worlds, and the sanctity of law is logical when the transition to a society ruled by law takes place. China, however, has no such cultural background, emphasizing people-oriented and relying more on people's consciousness. His compliance with the law is mainly based on his moral recognition of the law and his moral self-discipline.

External constraints must be based on internal constraints. Since the internal moral constraints have been abandoned, it is not feasible to rely solely on external constraints. "Cautious independence" and "self-denial" are the bottom lines that China once relied on. Many problems in our current rule of law construction are related to our lack of sacred and absolute emotional or rational understanding of the law.

Chen Guangzhong cited two recent legal incidents and started a discussion on the cultural differences between China and the West. In the United States, for school shootings, the federal court passed the decision to let go of individual gun rights. In sharp contrast, the management of guns and ammunition in China has never been relaxed, and it has achieved remarkable results in the near future. This reflects that the United States puts individual freedom rights above social security to a certain extent, while we emphasize safety first and collective human rights first, which reflects that the leading values of the two countries are different, but they are all reasonable. Therefore, for "punishing crimes" and "protecting human rights", one aspect should not be emphasized unilaterally, but should be combined with each other.

Qin Hui believes that there are some good things in China law itself that should be brought into play. On the other hand, in the west, both equity law and Roman law have a mid-century era, and it is hard to say that the rule of law we mentioned was implemented at that time. The most obvious is the Byzantine Empire: the Byzantine political history put forward the saying "1" and "by 1", emphasizing that the emperor used Roman law to rule. Although Roman law was developed at that time,

Su, a researcher at China Academy of Social Sciences, believes that to learn from the West, we should also know and identify with the West, and be careful not to blindly accept its extreme ideas. For western ideas, if we absorb extreme things, without restraint and natural enemies in the new environment, it may spread indefinitely and lead to disaster.

How to treat the problems existing in the construction of rule of law in China?

How to solve the problems in the current construction of the rule of law in China, the participating scholars will discuss the relationship between the rule of law and morality.

Guo Daohui proposed that "ruling the country by virtue" should be a supplement to "ruling the country by law". He believes that "rule by virtue" can not solve the fundamental problem, but can only be in an auxiliary position. In the pre-Qin period, Confucius and Mencius talked about "governing the country by virtue", which meant that the rulers should govern the country by virtue and implement benevolent policies, not to the people. In fact, in order to truly build a harmonious society, rulers should also govern the country by virtue. Justice is the last line of defense of social norms, and justice cannot be achieved without conscience.

Wang Songmiao, deputy editor-in-chief of Procuratorial Daily, expounded the relationship between "ruling the country by virtue" and "ruling the country by law". He thinks: First, there is no contradiction between "ruling the country by virtue" and "ruling the country by law". Governing the country by law means governing power by law, and governing the country by virtue means governing the country by virtue. The rule of law is not omnipotent, and many things are more effective by moral education. "Governing the country according to law" and "educating people by moral education" should also be completely unified.

Second, "ruling the country by virtue" is based on China's traditional legal culture. China's traditional culture emphasizes the doctrine of the mean, forgiveness and "forgiving others at the same time", which conforms to modern "mediation" and is conducive to resolving disputes and harmonious relations.

Third, "ruling the country by virtue" meets the needs of contemporary rule of law life and can meet the needs of building harmonious interpersonal relationships. Sometimes a black-and-white judgment can not only alleviate contradictions, but also intensify the opposition between the parties. Personally, I think that the law can only play a role in stabilizing the society in a harmonious society, but to be honest and friendly, the law can't do it, and it can only rely on morality. Law can never enrich people's feelings.

Fourth, we should have full confidence in the rule of law and make it our life arrangement. At the same time, we should also make the rule of virtue a way of life, so that the two can be in harmony and serve our lives together.

Professor Gao Huanyue, deputy secretary of the Party Committee of China University of Political Science and Law, believes that some of the cultural heritages created by predecessors can be inherited or even copied, while others can never be copied, but should be learned from the spiritual and value levels. We should take a dialectical attitude towards the mediation system.

Ying Songnian, a tenured professor at China University of Political Science and Law and an expert in administrative law, has been associated with the imperial examination system in ancient China since the drafting of the Civil Service Law. He pointed out that there were administrative norms and systems in ancient China, but there was no modern administrative law system.

Therefore, while agreeing that culture has a great influence on the rule of law, he believes that modern rule of law should be based not on a certain cultural basis, but on a certain economic basis.

To establish a market economy system in today's China, of course, we can't take the road of autocracy, but we must take the road of rule of law, that is, we must have a set of rule of law that is compatible with the market economy.

Absorb traditional nutrition and make the rule of law a way of life.

The establishment of the rule of law requires the establishment of the concept of the rule of law as its ideological basis. The understanding and interpretation of the concept of rule of law culture has become a topic for further discussion among the participating scholars.

Yi believes that there is a cultural influence behind any legal system and system, but it has not been discovered because of unconsciousness, so we should "jump out" and look for the influence of the deep cultural model on the rule of law construction in China. Modern rule of law should be based on rational culture, but China's traditional culture is not rational culture, but empirical culture. From the Simpson case, we can see how much the United States respected the procedure at that time, and from the Zhao Zuohai case, we can see that we still have no "awe" of the law.

Yi said that the work to be done now is not only to guide the rule of law with several concepts, but to make the rule of law a kind of consciousness. Respect for the law requires the participation of every citizen. The rule of law is not only a matter for the public, procuratorial organs and legal organs, but also the attitude of a country ruled by law to the law at all levels of society, from administration to the public, from procuratorial organs and legal organs to the people. This is also a diagnosis and treatment of the status quo of our rule of law.

Li Deshun concluded that the rule of law culture actually expresses an ideal, that is, to make the rule of law our way of life, not just the specific task and special power of the judicial department, and the law should become the right and responsibility of the whole society. To build the rule of law in Socialism with Chinese characteristics based on China culture, we should realistically analyze, criticize and reform the rule of law in Socialism with Chinese characteristics, explore its legitimacy and rationality, and institutionalize, systematize and program it according to the spirit of the rule of law. It is ourselves who grow and develop in this way, and let us face the world with confidence.