A Tentative Study of Disparities between Chinese and Western Law Culture

论文题目： A Tentative Study of Disparities between Chinese

and Western Law Culture

姓名：杨萌萌

学号：20100502110995

年级：2010级

专业：法律英语

学院：外国语学院

完成时间：2011年11月25日

Abstract

Since modern times, China has led its own way steadily. While from the beginning of modern society，a dramatically turn took palce，the great and ancient oriental civilization suffered a lot from the merciless blow of Western colonial gunboat as well as its culture. During this historic change, Chinese legal culture which has thousands of years of history and unique character disintegrated with the sink of the Qing Empire. In the following one hundred years, the creation of new legal culture in China is always intertwined with kinds of contradictions and conflicts, among which the contradictions of legal culture is the most significant one in China. Up to now, China's legal system enters into a new era, but the conflicts between western law and Chinese law(at least in concept) is still an undisputed fact. This brings us a theoretical topic full of practical significance : what conflicts are generated between Chinese and Western legal culture, how these differences is formed. With the further construction of China's legal system，the answer to these questions become more urgent. The exploration of the differences between Chinese and Western legal culture and a fully understanding of the nature of the conflicts beween Chinese and Western legal culture promotes the modernization of China's legal system and has a important practical significance. As globalization of legal culture has become an inevitable trend of legal cultural development, under this circumstance, legal cultural exchanges become more frequent and extensive, thus making the conflicts between Chinese and Western legal culture increasingly sharp. Here, this paper aims to make a comparison between Chinese and Western legal culture and attempts to provide a reference space for the development of China's socialist legal culture.

Key words:differences, Chinese law culture, Western law culture

1. Introduction

Before the analysis of differences between Chinese and Western law culture, we should first understand the concept of legal culture. Legal culture refers to the integration of system, awareness ,and traditional doctrine which are generally acknowledged, relatively stable as a result of long process of mutual life of a nation or country. Legal culture includes awareness of the law, legal system, legal practice, it is the the accumulated experience and wisdom of the activities of law system, of the implementation of the law, of legal education and legal research and other activities, it is the behavior patterns, traditions, habits which people engaged in various legal activities,. Only by correctly grasp of the concept of legal culture can we have a better understanding of the fact that different national traditions and history and social history gave birth to the different stages of legal culture. Therefore, I attempt to to give my perspectives on the differences between Chinese and Western law culture as following aspects.

II. Disparities between Chinese and Western Law Culture

(A). Disparities between the rule of law and the rule of man.

Before the discuss of disparities of the rule of law and rule of man, we should first get a clear idea of what is rule of law and what is rule of man. The functional interpretation of the term rule of law, consistent with the traditional English meaning, contrasts the rule of law with the rule of man. According to the functional view, a society in which government officers have a great deal of discretion has a low degree of rule of law, whereas a society in which government officers have little discretion has a high degree of rule of law. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. Although there are differences in the specific expressions of rule of law, the general spirit is the same or similar. To sum up, as the following aspects: in the modern sense, the rule of law is a product of democracy; the core of the rule of law is not only the state ruling the country through the rule of law, but also the state itself is restricted by the rule of the lawl，

that is using the laws to constrain the power; the immediate objective of the rule of law is to abolish tyranny and privilege and to achieve individual equality before the law; the rule of law requires no power above the law, that means the supremacy of law; the rule of law is both a means and methods, and at the same time, it is a value targets. Oxford Law Dictionary pointed out that rule of law means that all authority, legislative, administrative, judicial and other institutions should be subject to a number of principles. These principles are generally regarded as the legal expression of a variety of features. Aristotle once said: the rule of law should contain double meaning: the established law has gained universal obedience, and the law that we obey is the best enacted law. Drawn from reality, the rule of law is a way of ruling the country, is the principle of acting and conducts, the rule of law means a good legal order and represents a valuable regulated way of social life.This maxim is used to describe certain characteristics about the proper functioning of a legal system and its relationship with political power and individuals. In the rule of law western society, there are three main branches of government: an impartial judiciary, a democratic legislature and an accountable executive. Judiciary refers to an organization used for prosecution and judging. Legislature refers to an organization used for setting down, revising and abolishing the laws. Executive refers to an organization used for carrying out the laws. These three institutions prevent each other from abusing power, thus ensuring the implementation of fairness and justice.

Rule of man refers to a society in which one person, or a group of persons, rules arbitrarily. Rule of man is the social system in which an individual or a small number of people take control of social and public power, and use military, economic, political, legal, cultural, ethical and other material and spiritual means, accounting for the ruling of the vast majority of other members. In fact, it is somewhat equivalent to the tyranny. Ancient Chinese laws was controlled by the ethics of the Confucian school after the western Han Dynasty. Throughout the Confucian thought in China, Confucianism advocates sage rule to maintain the mystique of justice, the settlement of a lawsuit did not rely on the objective judging rules, but the judges' subjective will.

It emphasizes law enforcement officers's personality,quality, intelligence. This became the deciding factor of the hearing case. It is obviousto see that the main legal culture and ideas of Chinese law is based on the rule of man. However, looking at Western law culture and ideology, we infer that the law just plays as a balance measured the evidence presented by the parties without any bias. Sufficient evidence side won, judging rather than discovery. Therefore, the Western jurists believe that the law is no emotional bias of the middle a trade-off. So , in the trial process the judge should be neutral. Rule of man is judging through the subjective will of man. In contradiction, the rule of law is far more fair, since everything needs the evidence to support itself. The rule of law is important to foreign investors and to economic development. Differences between the rule of law and the rule of man is an important part of Chinese and Western legal cultural differences.

China's traditional culture traits determined that china can not spontaneously produce rule of law, the modernization of the rule of law must learn from the West with the level of system as well as the value. I hold the belief that in the issues of the legal construction, we must accept the values of Western law. Traditional Chinese concepts of law hinder the modernization of the legal system, in the process of the introduction of legal technology , we must update traditional values. But at the same time, I truly believe that updating of the concepts and acceptance of the values does not mean overall Westernization in the learning process. Making full use of traditional values properly can become a creative factor in the modernization. Updating concepts is not to abandon the traditional, but to develop the useful and discard the useless. China have to further public’s understanding of the authority of law,democracy and human rights.

(B). Different understanding of the law

The traditional Chinese legal system is based on the concept of criminal law as the core. Criminal law based legal system is unique, such as: Top Ten torture. This legal system and ancillary systems bred the laws of the content which had ignored the rights and imposed obligations. The conception of criminal law which made the old

Chinese believed that the law was punishment and this thought was deep in people's mind for a long time. In the terms of legal sense, the sources of law lied in the emperor, the emperor's words was the constitution and had imperial supremacy, the law determined by the king alone. The function of law is to rule the people, as well as the government officials and so on. Therefore, traditionally, Chinese people are often used to equate torture,rule, law, that is, they assumes law and criminal law as the same.

However in the Western understanding of the law, the right is mainly the core. That is because the ancient Greek and Roman law began in the country's civilian conflict with the nobility. To some extent, it is the product of social compromise. Therefore, this kind of law has to prefer one party to another as a result of the rise and fall of the power of social groups and can not has a repressive function as the state's coercive power, but after all, it is a crucial means to identify and protect important rights of all sectors of society and herefore has integrated effect, resulted in the huge disparities between Chinese and Western understanding of the law. The law protects different objects, thus the effectiveness of the law are different.

(C). Different basis of the law

Western law has always been rights-based, while traditional Chinese law is obligation-based. Traditional Chinese law paid more attention to serve for governance. Therefore, more importance is attached topeople's obligations, so the traditional Chinese law put emphasis on the provision of legal obligations of people, forming a obligation-oriented legal culture. In China, as everyone's legal status improve gradually and solidarism and nationalism at one time bring impersonal impacts to the western laws. As Western people persists the principle of the supremacy of individual rights. Western people give more attention to the pursuit of power, giving birth to rights-based legal culture.

The arised legal culture, in essence, is also somewhat different. The traditional Chinese legal culture is culture of public law, while Western culture is legal culture of private law. The so-called public law culture is essentially a criminal nature or the Criminal Code of the State of the legal system; private law culture is a civil nature or

privatization of the legal system. Indeed, the traditional Chinese law did have provisions on civil marriage, family, litigation and other aspects, but these provisions are criminalized in nature-oriented, that is to say, dealing with non-criminal matter in the way that the criminal law regulates. As traditional private law culture, western legal culture marked by the development of its civil and commercial law . In addition, we should also be aware of modern development of public law of western legal culture and the phenomenon of private law. For example, Roman law is the West's most comprehensive legal system.

(D). Different reflections in ethical and religious aspects

China's legal culture has a distinct ethical character, while Western legal culture has strong religious characteristics. Seeing from the history of China's legal system, we get the idea that the traditional Chinese legal culture is basically dominated by Confucian ethics, which holds the belief that the country should lead the people with virtue and thus create a sense of shame which will prevent bad conduct. Law is to be publicly promulgated standards of conduct backed by state coercion. Confucianism made the traditional Chinese law become a kind of moral law, then the law became a tool of ethics, and morality became the soul of the law. Confucianism is that law as used to serve the country , a means of controlling over the citizenry. Obviously, lacking of democracy has long been a problem in China.Thereby preventing the development of Chinese law.

Throughout the history of Western law, it is not difficult to find out that Western law is largely depended on Christian thoughts, and therefore marked a religious mark. For example: in the ancient Roman period, since Christianity is a source of life, naturally, it is bound to affect people's attitudes and laws rules. Although the modern bourgeois revolution separated the religion from the politics, on the whole the law got rid of the shackles and the control of Christianity, but the impact of Christianity on Western law still exists and deepens itself into the deep thought and culture of Western legal system. As the famous American jurist Berman wrote, "to the broadest sense, we can say that all aspects of the law is undoubtedly a religious marked." (E). Different reflections in rationality, scientificness and artistry

Disparities of Legal culture often reflects in the rational, scientific and artristic respect. Due to differences in rational and artistic aspects in China and the West legal culture, the traditional Chinese legal culture expresses the people's emotional factors, emphasizes the legislative and judicial should be consistent with specific human emotions. In fact, it emphasizes that law is an art, while ignoring its scientific nature. Chinese legal culture promotes following the natural way through inspiration, intuition and insight, it is natural rather than rational. Here, all problems are the products of inspiration as well as insight, lacking the abstract logic of rational argument. Justice, national law, and human emotions, these three factors merged into one as one of the legal traditions in ancient China. For instance: every dynasty has a legal privilege to protect the nobility. In Tang Dynasty, slaves will be sentenced to death if they persecuted masters, while if masters killed slaves, they only would be sentenced to suffering eighty stick . It is illustrated that Chinese law is more determined by human factor. In the ancient Chinese, Human factor is considered to be the law outside the law, whether in the process of legislation or in the process of judiciary, human factor can not be ignored.

The Western legal culture, often regards balance as a symbol, the balance not only represents the fairness, but also reflects a scientific, rational way of thinking. As early as in ancient Greek and Roman times, Cicero proposed that "law is the highest reason, is born from nature" .This has also become the mainstream of Western law --- the main content of natural law. Aristotle ever said: "The law is the manifestation of god and reason which exempts from all influence of passion ." Westerners emphasize the scientific nature of the law, the rationality of the law is the nature of the law. In their view, the law should be objective and stable as the law of natural sciences, such as mathematics and physics and should not be determined by the people's will. In fact, as the highest principle of Western society, the rule of law excludes influences from ethical, emotional and other irrational factors,and embarks on a rational path. In a word, the law should take a rational way, in order to ensure fairness and justice of the law.

III. Conclusion

All in all, different cultural background and different force of law and the disparities between service subjects result in the fundamental disagreement between he Chinese and western legal culture. And the key point is: different cultures and different traditions creates a difference between Chinese and western legal culture.In short, facing the legal culture conflicts between Chinese and Western culture, we must not only inherit the best of our existing traditional culture, but also learn from advanced Western countries in order to build a new culture legal culture. We must be aware of the fact that our legal system still has its defect. Such as the legal profession is inadequate.The judiciary should be independent from political pressure, the law should restrain corruption among public officials.Only by the study of similarities and differences between Chinese and Western legal system, can we correctly understand the national legislation. Exploring conflicts between the two has a pratical singinicance to better the legal reforms.

The study of the Chinese and western legal culture is a very important part of the modernization of China especially the modernization of laws at 21th century. We have to further public's understanding of the authority of law,democracy and human rights. Indeed, China's legal modernization is a complex systematic project, we must be based on all human beings historical experience and criticism and based on the understanding of the epoch and the grasp of future trends, we must boldly absorb and draw on the advanced Western culture tradition, meanwhile，we also need to rationally inherit and develop Chinese legal, thus ultimately realizing legal modernization. As known, the disparities of the two kinds of legal culture still exist. The more we have a better understanding of these differences, the faster we can build legal society with Chinese characteristics.

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