As college students in the new era, our desire and pursuit of freedom is our instinct. The ever-growing desk culture on university campuses expresses the common sentiment of contemporary college students that "life is precious and love is more valuable; if it is for freedom, both can be thrown away." However, history and reality tell us that freedom is not about acting arbitrarily or doing whatever you want, but is relative and restricted. Personal freedom has been restricted from two aspects from the beginning: one is the laws of nature; the other is social rules. Beyond these two behaviors, it is impossible to taste the sweet fruit of freedom. Law, as a cultural phenomenon and social rule chosen, accepted and inherited by human beings, has been closely related to people's acquisition or loss of freedom since its creation.

Sages have many wise words about the relationship between law and freedom. The ancient Roman jurist Cicero said: "In order to obtain freedom, we are the servants of the law. Montesquieu, the master of modern French Enlightenment thought, further pointed out: "Freedom is the right to do everything permitted by the law; if a person If a citizen is able to do something prohibited by law, he no longer has freedom, because other people also have this right. " Marx elaborated on this more clearly. He said: "Law is an affirmative, clear, and universal norm. In these norms, the existence of freedom is universal, theoretical, and does not depend on the willfulness of individual people. . The Code is the Bible of people's freedom. " It can be seen that if people want to gain true freedom, they should study the law, master the law, and use the law to regulate their behavior. The basic legal course is a course that helps college students master the basic viewpoints of law and basic knowledge of law.

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

Abstract Legal modernization is a universal phenomenon worldwide, and the internationalization and localization of legal development are two inseparable parts of this process Side. Traditional law is ancient law before modern times. Traditional legal resources play an important role in the process of legal modernization. China’s legal tradition has a long history. , is characterized by complexity and diversity, and there are many historical legacies that need to be discovered. China's legal modernization must pay full attention to traditional resources, and screen out the benign factors of traditional law without sacrificing the fundamental value of the rule of law. Transform it creatively

Keywords legal tradition, legal modernization reflection

1. Definition of legal traditional resources [1] (1) About "tradition". ”

What is tradition? Tradition is formed in the rolling waves of history. The historical tradition of an ancient nation always gives people the impression of being confused and distant. It seems to be extremely rich and difficult to grasp. According to Mr. Xu Fuguan's research, the word "tradition" first appeared in Chinese classics in "Book of the Later Han Dynasty. Biography of Dongyi" [2], but it only refers to the inheritance of power by rulers, which is different from the "tradition" we talk about today. "A far cry from it. China used to have the term "tradition", but it does not mean tradition. The word tradition is translated from the English "tradition", and "tradition" comes from the Latin "traditio", followed by the root "tradere" "The meaning of "rendition" is the passing of something from one person to another. E. Hills believes that tradition means many things. In its most obvious and basic sense, its The meaning is something passed down from generation to generation (tradium), that is, anything that has been passed down from the past to the present. [3] There are many opinions on what tradition is, and I will not list them all here. This article agrees with the special limitation of tradition, that is, it. It refers to "the sum of pre-modern social and cultural achievements, which has the characteristics of a relatively stable and internally harmonious system" [4]

(2) About legal tradition

The law and legal tradition mentioned in this article are understood from a broad perspective. In a narrow sense, law is only legal provisions and codes; in a broad sense, law and legal tradition include those positive laws, legal procedures, legal concepts and legal traditions. Standards for thinking and value judgment. Legal tradition can be understood as the vital legal cultural tradition in the ancient legal system that is still functioning in modern society.

It should be a diachronic concept that exists not only in ancient society, but also in existing society. It is an uninterrupted and continuously extending legal culture that grew and evolved from traditional law and still exerts influence and influence on real society. and spirit. Traditional law is a historical concept, mainly referring to pre-modern times in time. Traditional legal resources are the general term for all pre-modern legal achievements and are the foundation of a country's legal development. Under certain conditions, traditional law can be transformed into legal tradition.

2. Regarding legal modernization

(1) Standards for measuring modernization

As for the concept of modernization, different scholars have defined it from different perspectives.

1. C.E. Black tried to understand modernization from a historical genetic sense, believing that the term modernization refers to "the long-standing reform process due to the explosive growth of knowledge in recent centuries. The special significance of modernization lies in its dynamic character and the universality of its impact on human affairs. It originates from the belief and mentality that society can and should change, if it must be defined. "Modernization" can be defined as: "Reflecting the unprecedented growth of human control over the environment and knowledge, accompanied by the occurrence of the scientific revolution, the process of various systems developed in history adapting to rapidly changing functions." [5]

2. G. Rozman, who is famous for his research on China’s modernization issues, inherited Blake’s methodological principles and emphasized that modernization should be regarded as a change in society that has been or is being affected by the scientific and technological revolution. The process of change is an extremely dramatic, far-reaching, and inevitable example of social change in human history. [6]

3. M.J. Levi, starting from the standpoint of social structural functionalism, regards modernization as a universal development path for the entire human society, pointing out that "modernization is, after all, a fundamental aspect of social reality. The star of hope is an unprecedented leap in life style. Modernization is the only universal solution for society. "[7]

The above-mentioned views on modernization, "although their emphasis is different, all obviously include this. One judgment: Modernization is a so-called worldwide historical process, but it is the transformation and leap from traditional society to modern society. It is a profound transformation process in the main fields of social life that human society has experienced since the industrial revolution.” [8 ] "Modernization is first of all a concept of change. It is the historical replacement of traditional lifestyles and systems to modern lifestyles and systems." [9] "Secondly, modernization is a continuous concept. It is a long process of historical development and change. "[10]

In the author's opinion, modernity and tradition are not mutually exclusive and extreme states. There is no pure modernity or pure tradition in any society. On the contrary, the modernization process is a process in which tradition is continuously weakened and modernity is continuously enhanced. There is the possibility of developing modernity within the tradition of every society. Therefore, modernization is a process in which traditional systems and values ??continue to adapt to the requirements of modernity in terms of function, that is: industrialization in the economic field and democratization in the political field. , the interactive process of urbanization in the social field and rationalization in the field of values.

(2) The meaning of legal modernization

Legal modernization refers to the process of transformation from a country’s traditional legal system to a modern legal system. In the static aspect, legal modernization means that the promulgated laws are "good laws" that have a complete system, clear layers, balanced structure, coordinated norms, and unified styles, and reflect the will of the people, adapt to social development, and represent the trend of human progress; in the dynamic aspect, It means that the law "is respected in all respects and remains supreme." In short, the goal of legal modernization is the realization of the “rule of law”.

3. The status and role of legal tradition in the process of legal modernization

(1) Internally advanced countries

Among the many legal traditions in the modern world , the civil law system and the Anglo-American legal system have the most extensive influence, and the two major legal systems encountered Roman law[11] unexpectedly on the road of evolution.

The difference is that the representative countries of the two major legal systems have adopted completely different attitudes towards Roman law: as the birthplace of the Anglo-American legal system, the United Kingdom has largely rejected the influence of Roman law and has adopted a more independent approach. The path of legal development has formed a legal tradition with common law as the core; while countries in continental Europe, represented by Germany and France, have modernized their laws by absorbing Roman law, forming a civil law based on Roman law. Tie. Both Britain and Germany are essentially the result of absorbing many previous legal achievements, including Roman law and Germanic customary law. Britain has absorbed a large number of advanced elements of Roman law [12], and Germany has also retained many Germanic customary laws. reasonable core.

1. The Anglo-American legal system - taking the UK as an example: British legal historian Holzhouse believes that the basis of the legal system of Western European countries is partly the remnants of Roman law, mainly by Christian theologians. The barbarian customs that were reconciled and the political and legal thoughts of Roman jurists preserved by the church. Judging from the source, the British legal tradition combines Germanic, Roman and Christian factors. [13] Professor Liang Zhiping once proposed in his master's thesis "Roman Law Factors in British Law"⑤ that the difference between the British way of absorbing Roman law and that of mainland countries may also be a reason why British law is independent of the Roman law tradition. At the beginning of the establishment of common law, judges were all proficient in Roman law, such as Blackton. It was inevitable that they would be influenced by Roman law when issuing writs. But the crux of the matter lies in the way the common law of writs and precedents developed. Common law is based on writs and takes the form of precedents. This makes Roman law, which is more abstract and separates legal rules and reasons for the rules, only able to be dissolved in common law and cannot be expressed in the traditional form of legal norms. ; In addition, because it is subject to the common law way of thinking, even experts have difficulty discovering the influence of Roman law. Moreover, the most intuitive difference between legal systems lies in the form of legal expression and way of thinking rather than the content. This fact has strengthened the independent status of British law and formed a legal tradition independent of Roman law.

(1) Central court system and circuit trials. In the 11th and 12th centuries, in the process of continuous strengthening of central royal power, judicial power was also centralized to the center. At first, itinerant trials were carried out by the king and his government. However, as the number of cases increased and in order to eliminate the disadvantages of irregular assizes, three royal courts were gradually formed and fixed at Westminster Hall. Assize trials also took a further step in the reign of Henry II. institutionalized. Their role was to unify local customs and form a "unified custom of the kingdom", which no local lord's court could do. Moreover, Millson believed that the court that applied these customs was transferred from the local court to the royal court, which changed the nature of the customs. "The royal court... considered these customs to be just some rules and abstract rights," and the customs became law. The result of transforming unwritten custom into law and fixing it in the form of judgments is the formation of Britain's own legal tradition.

(2) Writ system. The writ is the basis of the jurisdiction of the Crown Court, that is, to obtain relief from the Crown Court (later common law), a writ must be obtained. Each writ deals with a dispute and includes corresponding procedures.

(3) Jury system. The previous juries were witnesses who proved the law and facts. They provided local customs for the circuit trials at that time and laid the foundation for the later unification of national customs. This refers to the petit jury, which is a rational trial method designed to replace backward trial methods such as divine judgment and duel. Its use enabled the Royal Court to attract more parties and promoted the continuous expansion of the jurisdiction of the Royal Court. This was its first contribution to the development of common law. Another contribution is that since the jury is not God, but is composed of ordinary people who make mistakes, generalized evidence will induce them to make mistakes, which forces the court to change the previously summarized statements and defense methods, making the jury "under consideration" The details of the facts will come later." This gave rise to substantive law.

(4) Defender. Advocates appeared after the royal court was fixed and the petit jury was formed. After the fixed royal court was established, the neighbor's oath could no longer be maintained. It was uneconomical to bring a group of neighbors from the local area to London for litigation, so a group of professional lawyers appeared in London. Since they are not neighbors, their role cannot be that of a witness. Coupled with the secular nature of the jury (as mentioned above), their role is to describe the facts in detail rather than in summary for the plaintiff, and to defend the plaintiff's statement sentence by sentence for the defendant.

Every defense is predicated on the recognition of a rule, and later people looked for legal rules from the defenses 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, eventually forming a closed guild-style lawyer group.

(5) Legal documents. Legal documents are descriptions of legal processes, which later became the basis of legal education and sources of legal sources. The first is the "Writ Collection". Since litigation must start with the correct writ, and understanding the royal common law also requires knowledge of writs, and the large number of such books lays the foundation for the fixation of the writ system. The second is the work of the Lord Chancellor, of which Granville and Blackton are the most famous. The basic content of the book is about the use of writs and precedents. The third type is the "Legal Yearbook", which records the entire process from the beginning of the lawsuit with the writ to the end of the judgment, especially regarding the statements and defenses. substantive law. No one wrote legal commentaries and systematic teaching books other than casuistic works like the Roman jurists. There was no commentary that reduced the facts into one or two sentences, only procedural writs and specific and lengthy defenses. These legal documents provided legal education with practical legal knowledge in the courts at that time; the contents of these legal documents were mainly comments on writs and precedents, which promoted British legal education and the formation of a unique tradition of British law.

(6) Legal profession and legal education. In the beginning, there were judges but no legal profession. The judges at that time were played by churchmen, who were administrators in a larger sense; lawyers did not exist, but this changed later. As mentioned above, due to the complexity and importance of pleading and choosing writs, the attorney appeared and by the end of the thirteenth century had become a closed profession in the High Court, that is, lawyers. There was also a tendency to select the judges of the royal courts from among these lawyers, and this practice became an established custom from the fourteenth century onwards. A unified British legal profession was formed.

(7) Case law. "However, if the same case arises, it should be decided in the same way: because it is easier to go from precedent to precedent," Bracton said. The function of this factor is to reflect the formality of litigation in a fixed written form. The customary law essentially served as the legal basis for subsequent trials. That is, even if there were not many statutory laws at that time, judges could find legal basis from previous judgments without having to consider whether they followed the concept of fairness or Absorb foreign laws for judgment.

(8) Judicial changes. This is a summary of the previous ones. At the beginning of the common law, the judiciary was only a part of the administration, and the problem was still solved as a whole. This made many cases require the special treatment of the justice's equity power; at the same time, the judges were all priests, and they were deeply Influenced by canon law and Roman law. When the above points occur, lawyers who are lawyers no longer rely too much on equity, but on previous writs and precedents, and lawyers also rely on precedents to defend. ⑥When the trial is conducted according to law rather than equity, its administrative nature becomes judicial, and the tradition of common law begins to form. In general, by the time of Blackton in the early thirteenth century (or earlier), the British royal courts had been formalized, the writ system had been formed, and lawyers trained through special apprenticeship methods and lawyers were drawn from among the lawyers. Judges formed a closed professional group, and precedents began to play a role as a source of law. It can be said that the tradition of English common law began.

2. Civil law system: Beginning in the twelfth century, a legal event occurred in Europe that had a major impact on the history of European law and even the history of world law, namely the revival of Roman law and the continuation of Roman law. by. The revival of Roman law refers to the academic movement that began at the University of Bologna in Italy in the twelfth century and then spread to universities in continental Western Europe and even the United Kingdom to study Justinian's "Summa Romana". 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 European legal history, it specifically refers to Germany's adoption of Roman law. Although all countries have inherited the revival of Roman law, When it came to absorbing Roman law into its own practice, Germany was particularly deeply influenced by Roman law. It not only widely inherited the systems and concepts of Roman law, but also made German jurisprudence "scientific" on the basis of Roman jurisprudence. This is not only far better than Britain, but also far inferior to countries such as France, which are also civil law systems. [15] Roman law became the foundation of the civil law system.

(2) Outward-looking backward countries

1. China: a patrimonial bureaucracy, a religious organization system, a legal structure with substantive justice as its core, and belief ethics and order Confucian ethics, which is pursuit as its essence, constitutes the basic elements of traditional Chinese social and legal life. Since the May 4th Movement, we can say that we have been completely, completely and holistically anti-traditional. This is a unique phenomenon in the process of legal modernization in China. There has always been a lot of controversy in the attitude towards legal tradition. This can be seen from the dispute between the Rites sect [16] and the Legalism sect in the late Qing Dynasty. Until now, scholars are still debating the issue of legal transplantation and legal localization. People completely oppose "modernity" and "tradition", ignore tradition or intentionally avoid legal tradition, and its shortcomings have gradually emerged. China has encountered many difficulties in building a modern rule of law without breaking away from its inherent traditions. It is precisely because of our attitude towards legal tradition that we are almost faced with an embarrassing situation. As one scholar joked, "Studying the history of Chinese legal thought will make us For us, it’s more like studying the history of foreign legal thought.” Mr. Liang Zhiping believes: "China's current basic legal system originated from the West and was not native to China. However, the set of ideas and behaviors behind the system have been part of the national culture for thousands of years. They have a deep foundation and are by no means indigenous. A political or social force can be changed or eliminated in a short period of time. Although the Chinese 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. Set a unique code of conduct?”[17] Hayek believes that although those social systems that have long been proven to be of great significance to human welfare are the products of human behavior, they are by no means the results of human action. but not of human design). Therefore, we must draw nourishment from traditional laws in order for legal modernization to develop healthily. When scholars from some countries summarize their country’s experience in legal modernization, they also believe that an important aspect is “maintaining and absorbing its pre-modern principles and systems.” [18] In the author’s opinion, our attitude towards the issue of legal tradition requires deep reflection.

2. Japan: The retention and maintenance of the Japanese emperor system under the constitutional system reflects Japan’s tolerant attitude towards legal traditions. In the process of modernization, Japan has successfully integrated the spirit of tradition and modern law. .

Japanese scholar Aoki Junji said in his article "National Consciousness and Tradition": "Tradition must include the nation, and the nation must also include the tradition." [19] Every nation has its own traditions, which is neither an arrogant capital nor an inherent shame. Tradition lives in our lives, 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 a tradition is formed, it “becomes part of the way of life of millions of people, and is passed down from generation to generation like half of a genetic gene.” [20] Legal modernization is not a tree without roots or water without a source. , its origin and foundation is legal tradition. We have to face up to the existence of legal tradition, study legal tradition carefully, find the point of convergence between legal tradition and legal modernization, and realize legal modernization on the basis of legal tradition. In this regard, the British experience deserves our attention. Most scholars of modernization studies believe that the British are best at "using tradition as the basis for transforming tradition, and at the same time interpreting tradition in a way that meets the needs of the times." [21] In the Middle Ages, “the acquisition and exercise of British royal power were restricted to varying degrees by customary law, statutory law, and meetings of wise men and parliaments: the constitutional principle that the king was under the law and above the law was bred and grew, and there was a vague state change. It must be relatively clear and unshakable.” [22] It was on the basis of these legal traditions that the principle of “rule of law” was first advocated in the United Kingdom.

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

Hayek believed that those social systems that have long been proven to be of great significance to human welfare are the results of human action but not of human design. human design).

Therefore, we must draw nourishment from traditional law in order for legal modernization to develop healthily. When scholars from some countries summarize their country’s experience in legal modernization, they also believe that an important aspect is “maintaining and absorbing its pre-modern principles and systems.” [23]

Thirdly, legal tradition can make up for the loopholes in legal modernization and correct the deviations of legal modernization.

It is generally believed that both Chinese and Western legal traditions contain many moral and ethical factors. In the process of legal modernization, because people completely oppose "modernity" and "tradition", they ignore tradition or intentionally The legal tradition has been largely avoided, and its shortcomings have gradually become apparent. In our country, this situation is particularly obvious. 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 have completely abandoned tradition and regarded tradition as "feudal remnants", which has led to us facing an even more embarrassing situation - lack of credit and moral decline. Wait, many people blame these negative social phenomena on the market economy. In the author's opinion, this situation arises more because of our attitude towards tradition. To change this situation, we need to return to tradition to a certain extent.

Finally, legal tradition can unite the national spirit and provide the collective identity needed for legal modernization.

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

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