The Chinese have created the concept of “humanity, reason and law” and developed a mentality around it. Since Confucianism was highly valued in the Han Dynasty, especially during the Han, Wei, and Six Dynasties periods, the exploration and analysis of “humanity and reason” in judicial practice has been widespread. This has led to the “filtering” and examination of laws based on “humanity and reason.” The objective aspect of “humanity” refers to the facts and circumstances of a case, extending to the latent emotions of the people involved. Confucian scholars proposed the principle of “judging a case based on its original sentiments and emotions.” The subjective aspect of “humanity” refers to sentiment and emotion, such as the “willingness” or “unwillingness” of both parties in a divorce case. The combination of the objective and subjective aspects of “humanity” together with their “reason” form the essence of “humanity, reason and law” and is the main content of this concept. “Humanity, reason and law” serves as both a principle of legal formulation and a method of application and interpretation. In modern times, SHEN Jiaben and XIE Juezai were pivotal in the development of “humanity, reason and law” mentality. SHEN Jiaben facilitated the transition from tradition to modernity, while XIE Juezai integrated ancient and excellent traditions into revolutionary legal practices, giving it a modern significance.
Legal practices from ancient to modern times have shown that law is closely related to language and writing. To compensate for the inherent uncertainty of language and writing, current laws use relatively sophisticated textual expression structures. Most of the lofty slogans and principles introduced from the West is nothing but a vain name and brings substantial harm. The concepts, systems, legislative techniques, and legal texts of traditional law have specific critical and reference significance for today’s legislation. It is especially significant for us to be vigilant about the reflection of traditional law on legal modesty.
The 5000-years uninterrupted Chinese legal culture embodies the political and legal wisdom of the Chinese nation and is a source of pride for the Chinese nation. It has provided extremely rich resources and treasures for the construction of socialist rule of law with Chinese characteristics. It has been inherited vertically, evolved intergenerationally and reserved continuously. Originating from both the historical legal system and from Marxist historical materialism, the Chinese legal system has profoundly influenced neighboring countries. The comprehensive governance of politics, law, and morality in ancient China, as reflected in the Rites of Zhou, a book of the Western Zhou Dynasty (1027-771 BC) on cultural ideology and political structure, provides an early work on the governance of ancient China. Chinese legal culture has remained progressive, and with the great rejuvenation of the Chinese nation, it is now important to promote Chinese legal culture for construction of the Chinese legal system in the new era.
Currently, research on the Chinese legal system is flourishing, and more and more issues are worthy of exploration. The Chinese legal system is unique among the five major legal systems in the world. It is the only ancient secular legal system, and the only ancient secular legal system to have been disseminated by non-coercive means. The openness of the Chinese legal system is a powerful proof that traditional Chinese law plays a role in importing and exporting legal policies and measures from and to other states. Indeed, these issues are important in research on the Chinese legal system, and a correct understanding of them can help to comprehensively understand traditional Chinese legal culture. It is essential to deepen the research on the Chinese legal system to contribute to its revival and to the inheritance of traditional Chinese legal culture. In addition to comprehensive discussions, it is also necessary to fill gaps and advance the research on the Chinese legal system.
As an important accomplishment of self-governance exploration for the Chinese nation, the Chinese legal system has contributed significantly to human rule-of-law civilization, and should be reinterpreted from three dimensions: historical tradition, prevailing practice, and future development. Following the constant logic of rule-of-law development in China, Chinese rule-of-law modernization marks a new era of the Chinese legal system and is a specific embodiment of Chinese modernization in the domain of rule of law. The Communist Party of China (CPC) has explored the China’s socialist rule-of-law practice with Chinese characteristics, carried forward the essence of fine Chinese rule-of-law culture, and learned from others’ important rule of-law achievements, modernizing the rule of law for the needs of China. Furthermore, XI Jinping Thought on the Rule of Law, adapting to the times to promote the great rejuvenation of the Chinese nation, understands and grasps the basic laws of national governance, the laws of socialist rule-of-law building and the principles of law-based humane civilization development. The Chinese legal system has thereby been revised and expanded through linking history with reality, the international scene with the domestic one, and theory with practice. Surely, the updated Chinese legal system with China characteristics and with world significance will return to global centre-stage in rule-of-law development. Also, the updated Chinese legal system in the new era will embrace the revival of Chinese rule-of-law civilization, while the Chinese rule-of-law modernization will advance the great rejuvenation of the Chinese nation.
The family system has always been effective in maintaining basic social order at the grassroots level in traditional Chinese society. At the beginning of the 20th century, Chinese society underwent tremendous changes, and traditional Chinese law was modernized; the family system became the most contested point of conflict between tradition and modernity, forcing lawmakers to be particularly cautious in making legal modernization. During the modern period, the political power struggles of various warlords led to chaos and disorder across the entire social legal system, yet legislative construction never ceased, and the legal modernization of traditional family systems became the focus of legislative endeavors for maintaining basic social order.
1.HAO Tiechuan, 中华法系的创造性转化 (Creative Transformation in Chinese Legal System), 1 东方法学 (Oriental Law), 13–25 (2022). Abstract Through the analysis of 18 characteristic cases in the current Chinese rule of law system, it is pointed out that the creative transformation of the Chinese legal system is an important way to form a characteristic of the current Chinese rule of law. Through the analysis of 102 aspects of the Chinese legal system, it is pointed out that if feudalistic content is eliminated, other contents of the Chinese legal system can be creatively transformed. Therefore, to carry out the creative transformation of the Chinese legal system, we must transform from unconscious and subtle changes to conscious and rational choices. The reference standards for the creative transformation of the Chinese legal system are: First, the socialist core value system and socialist core values. Second, the modern rule of law thinking and basic values of the rule of law. Third, the relevant international human rights conventions that China has participated in. The operating methods of the creative transformation of the Chinese legal system mainly include basic inheritance, partial inheritance and new interpretations of old words. China is the only survivor of the four major ancient civilizations in the world. The Chinese legal system is the only one that has no religious background and is human-oriented. Therefore, realizing the creative transformation of the Chinese legal system is an unshirkable historical mission.
CHEN Sisi, “春秋决狱”形成的法律文化模式及其功能 (The Legal Culture Model and Its Functions Formed from “the Judgment of Chunqiu”), 12 学术探索 (Academic Research), 95–107 (2022) .