Talking about the knowledge and understanding of law by studying law?

As college students in the new era, their desire and pursuit of freedom is our nature. The desk culture in the university campus, which is in the ascendant but has been repeatedly banned, expresses that contemporary college students "life is precious, and love is more precious;" If it is freedom, the two of them can have a common desire. However, history and reality tell us that freedom is neither arbitrary nor arbitrary, but relative and restricted. Freedom of personality has been restricted in two aspects from the beginning: one is the law of nature; The second is social rules. In addition to these two behaviors, it is impossible to taste the free Gan Guo. As a cultural phenomenon and social rule that human beings choose, accept and inherit, law has been closely related to the gains and losses of human freedom since it came into being.

Philosophers have many wise sayings about the relationship between law and freedom. Cicero, an ancient Roman jurist, said, "For freedom, we are servants of the law. Montesquieu, the master of French modern enlightenment thought, further pointed out: "Freedom is the right to do everything permitted by law; If a citizen can do what is forbidden by law, he will no longer have freedom, because others will also have this right. Marx expounded this more clearly. He said: "The law is an affirmative, clear and universal norm. In these norms, the existence of freedom is universal and theoretical, and does not depend on individual willfulness. The code is the bible of people's freedom. " It can be seen that if people want to gain real freedom, they must study the law, master the law and use the law to regulate their behavior. The basic course of law is a course to help college students master the basic viewpoints and knowledge of law.

On the role of legal tradition in the process of legal modernization

Legal modernization is a universal phenomenon in the world, and internationalization and localization of legal development are two inseparable aspects in this process. Traditional law is an ancient law before modern times. Traditional legal resources play an important role in the process of legal modernization. All countries attach great importance to the selection, transformation and utilization of traditional legal resources in the process of legal modernization. China's legal tradition has a long history and is characterized by complexity and diversity, and there are many historical heritages to be explored. The modernization of China's legal system must pay full attention to traditional resources, screen the benign factors of traditional laws and creatively transform them without sacrificing the fundamental value of the rule of law.

Keywords: legal tradition, reflection on legal modernization

I. Definition of traditional legal resources [1]

(A) on "tradition"

What is tradition? Tradition is formed in the rolling waves of the long history. The historical tradition of an ancient nation always gives people a distant impression, which is extremely rich and elusive. According to Mr. Xu's textual research, the word "tradition" first appeared in China's classic The Book of the Later Han Dynasty. [2] But it only refers to the inheritance of rulers, which is far from what is called "tradition" today. China used to have the word "orthodoxy", but it didn't mean tradition. The word tradition is translated from English "tradition" and comes from Latin "tradition". Secondly, the root word "tradition" means "extradition", which means that something is passed from one person to another. E. Hills thinks that tradition means many things. In its most obvious and basic sense, it means something handed down from generation to generation, that is, anything handed down from the past to the present. [3] There are many views on what tradition is, and I won't list them here. This paper agrees with the traditional special definition, that is, "the sum of social and cultural achievements in the pre-modern period has the systematic characteristics of relative stability and internal harmony." [4]

(B) on the legal tradition

The law and legal tradition mentioned in this paper are understood from a broad perspective. In a narrow sense, laws are only legal provisions and codes; Broadly speaking, law and legal tradition include those legal traditions, such as positive law, legal procedures, legal concepts, thinking standards and value judgments. Legal tradition can be understood as a legal cultural tradition that is still playing a role in modern society and has vitality in the ancient legal system. It should be a diachronic concept, which exists not only in ancient society, but also in existing society. It is an uninterrupted and constantly extending legal culture and spirit, which developed from traditional law and still has a role and influence on the real society. Traditional law is a historical concept, which mainly refers to pre-modernity in time. Traditional legal resources are the general name of all pre-modern legal achievements and the foundation of a country's legal development. Under certain conditions, traditional law can be transformed into legal tradition.

Second, about the modernization of law.

(A) the measure of modernization

Different scholars have defined the concept of modernization from different angles.

1.c e Blake tries to understand modernization in the sense of historical genesis, and thinks that the word modernization refers to the dynamic form of the long-term reform process caused by the explosive growth of knowledge in recent centuries. The special significance of modernization lies in its dynamic characteristics and universality of its influence on human affairs. It originated from the fact that society can and should change, changing the beliefs and mentality that are in line with people's hearts. If it must be defined,' modernization' can be defined as: reflecting the unprecedented growth of human control environment and knowledge, and with the occurrence of scientific revolution, various systems developed from history adapt to rapid changes. " [5]

2. rozman, who is famous for his research on China's modernization, inherited Blake's methodological principles and emphasized that modernization should be regarded as a process in which society has changed or is changing under the influence of scientific and technological revolution, which is a dramatic, far-reaching and inevitable example of social change in human history. [6]

3. M.J. Levi regards modernization as the universal development path of the whole human society from the standpoint of social structural functionalism, and points out that "modernization is, after all, a star of hope in social reality and an unprecedented leap in lifestyle. Modernization is the only universal way out for society. " [7]

All the above viewpoints on modernization, "although the emphasis is different, obviously contain such a judgment: the so-called worldwide historical process of modernization is a transformation and leap from traditional society to modern society, and a profound transformation process in the main fields of social life experienced by human society since the industrial revolution." [8] "Modernization is first of all a changing concept, and it is a historic replacement of traditional lifestyle and its system for modern lifestyle and its system"; [9] "Secondly, modernization is a continuous concept. It is a long historical development and change process. " [ 10]

In my opinion, modernity and tradition are not extreme states of mutual opposition and mutual exclusion, and there is no pure modernity and pure tradition in any society. On the contrary, the modernization process is a process of weakening tradition and strengthening modernity. The tradition of every society has the possibility of developing modernity. Therefore, modernization is an interactive process in which traditional systems and values constantly adapt to the requirements of modernity, that is, industrialization in the economic field, democratization in the political field, urbanization in the social field and rationalization in the value field.

(B) the meaning of legal modernization

The modernization of legal system refers to the process of a country's traditional legal system changing to modern legal system. In the static aspect, the modernization of law means that the published law is a "good law" with complete system, clear hierarchy, balanced structure, standardized coordination and unified style, which embodies the people's will, adapts to social development and represents the trend of human progress; In terms of dynamics, it means that the law is "respected in any way and maintains the highest authority". In short, the goal of legal modernization is to realize the rule of law.

Third, the position and role of legal tradition in the process of legal modernization.

The first country to act

Among many legal traditions in the modern world, civil law system and common law system have the most extensive influence, and both of them meet with Roman law [1 1] on the road of evolution. The difference is that the representative countries of the two legal systems have taken completely different attitudes towards Roman law: Britain, as the birthplace of the Anglo-American legal system, largely rejected the influence of Roman law and embarked on a relatively independent legal development path, forming a legal tradition with the common law as the core; The continental European countries, represented by Germany and France, adopted the method of absorbing Roman law to modernize their laws, and formed a continental legal system based on Roman law. Britain and Germany are essentially the result of absorbing many previous legal achievements, including Roman law and Germanic customary law. Britain absorbed many advanced elements of Roman law [12], and Germany also retained many reasonable cores of Germanic customary law.

1. Anglo-American legal system-Take Britain as an example: Hawkes House, a British legal historian, believes that the basic part of the legal system in western European countries is the remnants of Roman law, mainly the barbarian habits reconciled by Christian theologians and the political and legal thoughts of Roman jurists preserved by the church. From the source, the legal tradition in Britain combines Germanic factors, Roman factors and Christian factors. [13] Professor Liang Zhiping once pointed out in his master's thesis "Roman law factors in English law" (5) that the difference in the absorption of Roman law between Britain and mainland countries may also be a reason why English law is independent of Roman law tradition. At the beginning of the establishment of the common law, judges were proficient in Roman law, Blackton was an example, and it was inevitable to be influenced by Roman law when issuing writs. But the crux of the problem lies in the development of writ and precedent, a common law. The common law is based on writs and takes precedent as its form of expression, which makes Roman law, which is more abstract and separates legal rules from rules, can only be dissolved in the common law, but can not be expressed in the form of traditional legal norms; In addition, due to the thinking mode of common law, even experts can hardly find the influence of Roman law. Moreover, the most intuitive difference between legal systems lies in the form of expression and mode of thinking rather than the legal content, which strengthens the independent position of English law and forms a legal tradition independent of Roman law.

(1) Central Court System and Circuit Trial. 1 1- 12 century, in the process of strengthening the kingship of the central government, judicial power was also concentrated in the central government. At first, the king and his government adopted circuit trial, but with the increase of cases, in order to eliminate the disadvantages of irregular circuit trial, three royal courts fixed in Westminster Hall were gradually formed, and circuit trial was further institutionalized during Henry II. Their role is to unify local customs and form a "unified custom of the kingdom", which is beyond the reach of any local lords court. Moreover, Mearson believed that the courts applying these customs changed from local courts to royal courts, which changed the nature of customs. "The Royal Court ... thinks that these customs are just some rules and abstract rights," and customs become laws. This unwritten custom was transformed into law and fixed in the form of judgment, thus forming Britain's own legal tradition.

(2) Writ system. Writ is the basis of the jurisdiction of the royal court, that is, if you want to get relief from the royal court (later common law), you must get a writ. And each writ is a solution to a dispute, including the corresponding procedures.

(3) the jury system. The former jury was a witness to prove the law and facts. They provided local customs for the circuit trial at that time and laid the foundation for the later unification of national customs. Here refers to the small jury, which is a rational trial method to replace the backward trial methods such as trial by god and duel. Its application makes the royal court attract more parties and promotes the continuous expansion of the jurisdiction of the royal court, which is its first contribution to the development of common law. Another contribution is that because the jury is not God, it is composed of ordinary people who make mistakes, and the summarized evidence will induce them to make mistakes, forcing the court to change the previously summarized statement and defense mode and let the jury make a judgment "after considering the details of the facts". This led to the emergence of substantive law.

(4) Defender. The defender was fixed in the royal court and appeared after the small jury was produced. When the fixed royal court was established, the affidavit of neighbors could not be maintained, and it was not economical to bring a group of neighbors to London for litigation, so a group of professional lawyers appeared in London. As they are not neighbors, their role cannot be affidavit. Coupled with the secular nature of the jury (as mentioned above), their role is to describe the facts in detail rather than in general for the plaintiff, and to defend the defendant's narrative sentence by sentence. And every defense is based on the recognition of a rule, and future generations are looking for legal rules from the defense of these defenders. [14] The complexity of the writ system and the consequences of choosing the wrong writ led to the increase and specialization of defenders, and finally formed a closed group of guild lawyers.

(5) legal documents. Legal documents are descriptions of the legal process, which later became the basis of legal education and the source of legal sources. The first is the collection of writs, because the lawsuit must start with the correct writs, and the knowledge of writs is also needed to understand the common law of the royal family. The existence of a large number of such books laid the foundation for the immobilization of the writs system. The second category is the works of justices, among which glanville and Blackton are the most famous. The basic content of this book is about the use of writs and precedents. The third is the Yearbook of Law, which describes the whole process from the beginning of litigation with writ to the end of judgment, especially about statements and defenses. It records the statements and defenses of the declarant, that is, the substantive law applicable to the case. Like Roman jurists, except for questionable works, no one wrote legal reviews and systematic teaching books, and no one simplified the facts into one or two comments, only procedural writs and specific lengthy defense statements. These legal documents provided legal education with practical legal knowledge for the court at that time; The contents of these legal documents are mainly comments on writs and precedents, which promote the formation of British legal education and the unique tradition of British law.

(6) legal profession and legal education. At the beginning, there were judges who were not specialized in law. At that time, judges were held by church people, who were managers in a greater sense. Lawyers didn't exist, but later they changed. As mentioned above, due to the complexity and importance of defense and writ of choice, the narrator appeared. By the end of the 13th century, he had become a closed profession in the High Court, that is, a lawyer. At the same time, there is a tendency to select judges of the Royal Court from these lawyers, which has become an established habit since the 14th century. A unified British legal profession has been formed.

(7) Case law. Black said: "However, if the same case happens, it should be judged in the same way: it is easier to deal with it case by case." The role of this factor is to take the customary law embodied in the litigation with a fixed written form as the legal basis for future trials, that is, even if there were not many written laws at that time, judges could find the legal basis from previous judgments without considering whether to make judgments based on the concept of justice or absorb foreign laws.

(8) Judicial reform. This is a summary of the previous. At the beginning of the common law, justice was only a part of administration, and the problem was still solved as a whole, which made many cases need special treatment by judges in equity. At the same time, judges are priests, deeply influenced by church law and Roman law. When the above points happen, the judge as a lawyer no longer relies too much on equity, but relies on previous writs and precedents, and lawyers also defend according to precedents. When the trial is conducted in accordance with the law rather than equity, its administrative nature becomes judicial, and the common law tradition begins to take shape. Generally speaking, by the beginning of the13rd century (or earlier), the royal courts in Britain had been formalized, and the writ system had been formed. Lawyers trained through special apprenticeship and judges selected from lawyers formed a closed professional group, and precedents began to play the role of legal sources. It can be said that the tradition of English common law began.

2. Continental law system: From the12nd century, a legal event that had a great impact on the legal history of Europe and even the world, namely the revival and inheritance of Roman law, took place in Europe. The revival of Roman law refers to the academic movement that started in the University of Bologna, Italy in the12nd century and then spread to western European countries and even British universities to study Justinian's Complete Works of State Law. Generally speaking, the inheritance of Roman law refers to the activities of western European countries to absorb Roman law into their own judicial practice; In the history of European law, it refers to the adoption of Roman law in Germany. Although all countries have inherited the revival of Roman law and absorbed it into their own practice, Germany has been deeply influenced by Roman law. It not only widely inherited the system and concept of Roman law, but also made German jurisprudence "scientific" on the basis of Roman law, which was not only far superior to Britain, but also far inferior to France and other countries with the same civil law system. Roman law became the foundation of civil law system.

Outward backward country

1. China: The bureaucratic state of family property, the religious organization system, the legal structure with substantive justice as the core, and the Confucian ethics with belief ethics and order pursuit as the noumenon constitute the basic elements of traditional China social and legal life. Since the May 4th Movement, we have been completely, thoroughly and thoroughly anti-tradition, which is a unique phenomenon in the process of China's legal modernization. There has been a long-standing controversy about the attitude towards legal tradition, which can be seen from the dispute between Confucianism [16] and Legalism in the late Qing Dynasty. Up to now, scholars are still arguing about legal transplantation and legal localization. People completely oppose "modernity" and "tradition", ignore tradition or deliberately avoid legal tradition, and its disadvantages are gradually emerging. Under the condition of breaking away from the inherent tradition, China has encountered many difficulties in building a modern rule of law. It is precisely because of our attitude towards legal tradition that we are almost faced with an embarrassing situation, just as some scholars joked that "learning the history of legal thought in China is more like learning the history of legal thought in foreign countries". Mr. Liang Zhiping said: "The current basic legal system in China originated from the West, and was not born and bred. However, the set of ideas and behaviors behind the system is a part of national culture for thousands of years and has a deep foundation, which can never be changed or removed by a political or social force in a short time. Although China people have introduced the western legal system for nearly a hundred years, it is not difficult to detect it through their words and deeds. In fact, there is another unique code of conduct? " [17] Hayek believes that those social systems that have long been proved to be of great significance to human welfare are the products of human behavior, but they are by no means the products of human design. Therefore, we must draw nutrition from the traditional law, so that the law can be modernized and developed healthily. When summing up the experience of legal modernization in some countries, scholars also believe that an important aspect is to "maintain and absorb its pre-modern principles and systems." In my opinion, our attitude towards legal tradition needs deep reflection.

2. Japan: The preservation and maintenance of Japan's Mikado system under the constitutional system reflects Japan's tolerant attitude towards the legal tradition. In the process of modernization, Japan has successfully integrated traditional spirit with modern law.

Japanese scholar Shunzhi Aoki said in the article "National Consciousness and Tradition": "Tradition must include nation, and nation must also include tradition". [19] Every nation has its own tradition, which is neither arrogant capital nor natural shame. Tradition lives in our life, and we also live in tradition. Therefore, traditional law plays an important role in legal modernization.

First of all, legal tradition is the foundation and logical starting point of legal modernization.

Once the tradition is formed, it "becomes a part of the lifestyle of thousands of people and is passed down from generation to generation like half the genes." [20] The modernization of the legal system is not a rootless tree or passive water, but its origin and foundation are legal traditions. We must face up to the existence of legal tradition, study legal tradition seriously, find the coincidence point between legal tradition and legal modernization, and realize legal modernization on the basis of legal tradition. In this regard, the experience of Britain deserves our attention. Most scholars of modernization research believe that the British are best at "taking tradition as the basis of transforming tradition, and at the same time explaining tradition in a way that meets the needs of the times". [2 1] In the Middle Ages, "the acquisition and exercise of British kingship were restricted to varying degrees by customary law, written law, witenagemot and parliament: the constitutional principle that the king was under the law and above the law was nurtured and grew, and the hazy state became more clear and unshakable." [22] It is on the basis of these legal traditions that the principle of "rule of law" was advocated in Britain.

Secondly, legal tradition can provide strong intellectual support for legal modernization, and it is an inexhaustible ideological treasure house of legal modernization.

Hayek believes that those social systems that have long been proved to be of great significance to human welfare are the products of human behavior, but they are by no means the result of human action rather than the result of human design. Therefore, we must draw nutrition from the traditional law, so that the law can be modernized and developed healthily. When summing up the experience of legal modernization in some countries, scholars also believe that an important aspect is to "maintain and absorb its pre-modern principles and systems." [23]

Third, legal tradition can make up for the loopholes in legal modernization and correct the deviation of legal modernization.

It is generally believed that there are many moral and ethical factors in Chinese and western legal traditions. In the process of legal modernization, because people completely oppose "modernity" and "tradition", ignore tradition or deliberately avoid legal tradition, its disadvantages gradually emerge. This is especially true in China. Since the founding of the People's Republic of China, although many concepts and habits have been heavily influenced by tradition, our attitude can be said to be to completely abandon tradition, regard tradition as a "feudal remnant", and even face more embarrassing situations-lack of credit, moral decline and so on. Many people blame these bad social phenomena on the market economy. In my opinion, this situation is more due to our attitude towards tradition. To change this situation, we need to return to tradition to some extent.

Finally, legal tradition can condense the national spirit and provide necessary collective recognition for legal modernization.

To sum up, traditional law can be creatively transformed into legal tradition and into nutrients and materials that modern law can absorb.

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