No "social fact" is absolutely static. From a dialectical perspective, movement is absolute, while stillness is relative. This is true of society, and so is the culture on social carriers. The movement and changes of social facts are relatively easy to understand. When it comes to culture, because we deeply attach importance to the "value", "concept" and inheritance of culture, we have no regard for the materiality, movement, process and variability of culture. concerns are often ignored. This situation also extends to the understanding of legal culture. Ehrlich believes that "every society has an internal order that combines the people who make up the society. Even if it has not become a provision in the current law, it still governs life itself. This internal order is actually equivalent to the future Anthropologists call it 'cultural form'. Therefore, lawyers not only need to know the actual rules under the legal system, but also understand the inner order of the normative nature of today's living law." He added, "Living law is not static. , but a process of constant change, so the current law needs to constantly adapt to it, and the ethical values ??popular in society will be reflected in the living law. Therefore, those responsible for developing the legal system, in order to make the law consistent with current morality, It must be closely connected with the content of this internal order in society.” [1] Law changes with social changes, and the requirement for law is that all statutory laws must be coordinated with current social needs and current morality. , all inevitably have the nature of "living law", showing the evolution of legal and cultural forms due to changes in social life. This is a process of legal change viewed from the “external” relationship between law and society. The process of the operation of law itself and the process of law and social change are intertwined and mutually reinforcing.

Looking at culture from a semiotic perspective can open a quick channel for us to think. "Every aspect of culture can be regarded as a system of signs: spoken and visual language, various actions, gestures and gestures, architecture and furniture, clothing, accessories and menus, etc., are all objects to be deciphered by semiotics. Right Based on this premise, semiotics examines the way symbols operate in culture. Understanding a culture means detecting and interpreting its symbol system. However, symbols themselves do not include clear meanings or concepts. It only provides us with certain clues so that we can discover meaning with the help of interpretation. Only when symbols are deciphered with the help of cultural conventions and rules adopted by people intentionally or unintentionally can symbols take on meaning. "[2] Culture, as a symbol, has its own meaning. The "static" aspect, especially history and culture, is often given the status of "past perfect tense" in people's minds. However, as discussed above, semiotics pays more attention to the examination of "the way symbols operate in culture." Cultural symbols only have meaning when they are "operating" and deciphered by people. This is not only true at the conceptual level, but also at the materialized level; this is not only true for historical culture, but also for current culture. Attention to process is an important entry point for contemporary cultural research. This point has extremely important methodological significance for legal culture research.

The characteristic of justice is naturally "process", and the title of Cardozo's famous book "The Nature of the Judicial Process" highlights this idea. Cardozo believes that the growth of law itself is in a process of constant compromise and adjustment. “Every reasonable topic will involve some once-uncoordinated topics, and every uncoordinated topic will also involve some once-coordinated topics.” "[3] What is said here is that the logic of legal growth stems from its own internal change and coordination. This process of coordination and compromise also exists in the trial of every judicial case. It exists within the legal relationship and is more reflected in the broad social background constructed by individuals and groups. "There are mutual attractions and mutual repulsions between individuals, between individuals and groups, and between groups. Energy must be released, and energy must also be restrained. Reconciling these opposites is one of the major issues of law." [4] This not only shows that the law will face and solve this major problem, but also shows that the law itself will be in this coordinated state of attraction and repulsion. It can be said that the process of coordination is the process of justice; and the manifestation of justice is an action process.

We can get confirmation from the research of legal sociologists. Western legal sociology research roughly interprets the concept of law from three perspectives: one is the perspective of legal anthropology, one is the perspective of non-governmental law, and the other is the perspective of law in action. As the American legal sociologist Pound pointed out, “What sociological jurists are concerned about is the operation of law (that is, the operation of the legal order, the operation of the authoritative principle body that guides trials, and the operation of judicial and administrative processes), and "The abstract content of non-authoritative laws and regulations."[5] Therefore, he defined legal science as "a rigorous study of legal systems and legal regulations (that is, legal regulations on society). Knowledge of regulation and organization. We should not only study the task of social control through the legal regulation of the relations between members of society, but also the means of legal institutions, laws in the sense of legal collectives, and judicial and administrative processes." [6 "The process of legal operation" has been refined into key terms and concepts, highlighting the core and theoretical contribution of legal sociology research.

The study of later laws and their legal culture also points out an approach of great value. For example, Japanese scholar Rippon Yoshihei further refined the three main research areas of legal sociology: the sociological theory of law, the theory of changes in law and society, and the theory of the legal operating process. He put forward the proposition that "the legal process is also the media process of the interaction between the legal system and the external society." [7] Here, “legal process” emphasizes the external social factors that influence the formation and development of the legal system, as well as the “media process” of the interaction between law and society. Among them, the term "media process" is intriguing, as it means that there are various forms of "media" between law and society; moreover, the interaction between law and society needs to be effective through "media"; "media process" is not only direct but also There are indirect effects, not only internal but also external. Legal culture also embodies different characteristics due to different "media" and "media processes". Rokumoto Yappei believes that legal culture in a broad sense refers to the uniqueness of each country’s legal system and legal process. For example, when it comes to British law, its characteristics include: there is no written constitution that stipulates basic human rights; there are barristers and junior lawyers in defense; judges and barristers wear wigs in court, etc. 〔8〕 In a certain sense, the basic spirit of the constitutions and departmental laws of various countries, such as expressions of freedom, democracy, rights, etc., may be similar, but their "legal processes" are different. It is this medium and process The uniqueness has created the different characteristics of the legal culture of the civil law system and the common law system. Some "symbols" of legal culture may serve as "media" or as a carrier or symbol of legal culture. As mentioned above, judges and barristers wear wigs in British legal culture.

In addition to examining the legal process from the perspective of the natural connection between law and society and social changes promoting legal reform, we can also expand our understanding of the "action" and "process" nature of law from the perspective of constructivist methodology. understand. Constructivism is a social science research methodology that emerged in the 1930s. By the 1960s, the constructivist trend of thought further extended to influence sociology of knowledge, sociology of science, symbolic interactionism, phenomenological sociology, etc., and by the 1980s After the 1990s, with the decline of postmodernist deconstruction, constructivism became one of the important methodologies in social sciences, and its influence continues to this day. Constructivism believes that in addition to the objective content composed of actors, the objectively existing social reality also includes social construction by subjective processes such as thoughts, beliefs, and knowledge; it is an objectification of the subjective process and the objectification of subjectivity. The interactive world of processes. It is believed that society is not a pre-given objective reality, but is created by the actions of social members; the act of creating society necessarily requires the display of specialized skills; actors cannot freely choose how to create society, but are limited by their inability to The constraints of the historical location of choice; structure has the dual ability to restrict human action and promote human action (providing resources for it). The focus of sociological investigation is the structuring process-structure is constituted through action and action is structured structurally. . 〔9〕 Here, the viewpoints of the construction of actors and the structure of actions have important methodological implications for our thinking about the construction of law and legal culture. Our consideration of legal culture requires not only an in-depth internal analysis of institutional and conceptual value factors, but also the need to find the dominant causes of institutional and conceptual changes from the perspective of the social environment and its historical changes; not only must internal and external research be combined, Moreover, we must also pay attention to the action and construction process of legal culture from the perspective of construction and action methods - that is, not to statically focus on the dead systems and outdated concepts of the past, but to dynamically restore and resurrect the living things in history. The formation process of legal culture, through judicial activities, social adaptation, and even social public opinion, to observe the internal mechanism of the formation process of legal culture; focusing not only on historical legal culture, but also on current legal culture - in order to construct the current legal culture , Building harmonious and civilized legal ecological services should be our goal.

Since the beginning of the new century, as China’s domestic academic circles have paid increasing attention to the study of the relationship between law and society, innovations in methodological approaches, especially the promotion of research paradigms, have gradually become prominent. Among them, the more influential Such as the "structure-system" analysis paradigm, the "relationship-event" analysis paradigm, the research paradigm of folk law, rural society and civil society, etc. Among these paradigm studies, they all focus more on action, process levels and effects. In the view of these scholars, “institutional rules and behavioral rules belong to two different levels. Legal science pays more attention to the internal effectiveness of the law, while sociology tends to focus on the reality that social members recognize and fulfill legal rules. This requires sociology of law. Research should focus on the action level to discover social facts.” [10] For example, in the relationship-event paradigm, researchers mainly focus on events or cases as the starting point, and analyze the complexity of the case occurrence process through the restoration of the case. nature and the multi-party game nature of the case trial process. “It is from the social actions of social actors, that is, the mutual transformation of their strategies, resources and rules or meanings, that we can better explain how the above oppositions are transformed and how they interact; In the network of relationships, in the knowledge, systems, behavioral habits and interests that organize the actions of members of the legal operation scene, we can reinterpret and interpret the law.

” [11] This deepening of understanding will help us innovate and advance the methodology, framework, vision, variables, etc. of legal culture research. A prominent issue is that we should shift from the static historical level to the dynamic current construction. ; From the level of self-worth and concepts in the traditional Chinese legal system, to the level of the interaction between values ??and actual operating variables.

All cultures can be regarded as a symbolic system, and culture is composed of symbols. Symbols are composed of three levels: external carrier, intrinsic meaning, operation process and media communication, which are the concentrated expression of human life style. The emergence and evolution of culture include the process of creation and application of symbols, and the inheritance of symbolic entities. Among them, the external materialization process and inheritance are as important as the internal symbolism and value, and they are both indispensable components of the symbol system. Moreover, sometimes its external processivity is more important than its internal symbolism. Character is more important. Typical examples include architectural culture, witchcraft and other religious rituals and folk performance culture. Buildings are not only the external material carrier of architectural culture, but also the spiritual body of architectural culture, such as oral folk customs and religious rituals, and their performances. Process is the integration and embodiment of all the material and spiritual aspects of its culture. Therefore, when we look back at legal culture, its judicial process is far more important than the study of its static systems and concepts, and this is exactly what the previous theory of legal culture has said. The materialized process of legal culture is as important as its inherent spirituality. Just like the postmodern emphasis on text and the development of hermeneutics, the process itself is no less important than the purpose and the value hidden behind the purpose. Meaning. Today, the protection of human material culture and intangible cultural heritage strongly advocated by UNESCO has effectively illustrated this point. The characteristic of lawyers wearing wigs is a typical example of the materialization and behavioral process of legal culture.

After elaborating and analyzing the judicial process, Cardozo pointed out: “What I have learned from the analysis of the judicial process is just that. The conclusion is that logic, history, custom, utility, and accepted standards of correct behavior are some of the forces that alone or jointly influence the progress of law. ” [12] In other words, it is the historical background and practical needs that are combined with history, customs, and practical interests that affect the progress of the law. Furthermore, whether viewed in a broad or narrow sense, various cultural factors influence the progress of the law. It leads to the progress of law, and the value of legal culture itself is especially reflected in its progress.

Although there are countless definitions of culture, and its classifications are endless, such as the dichotomy of spiritual culture and material culture. ; such as the trichotomy of conceptual culture, institutional culture, and artifact culture, etc. There are both traditional cultural anthropology perspectives and new perspectives such as modern semiotics and interaction theory. But in short, “Culture is a habit. The acquisition system of sexual behavior produces and determines an individual's action plan. In short, social structure produces culture, culture leads to practice, and practice ultimately reproduces social structure. "[13] This brief summary is rich in connotation. It covers at least the following aspects: culture is an acquisition process, and acquisition itself reflects its long-term process and inheritability. ;Culture is produced by a certain social structure, and what kind of social structure there is will have what kind of cultural model; culture triggers social practice activities, and practice means that culture is not a static state, but full of changes and changes. , variable factors. These implications are reflected at the level of legal culture, which means that legal culture has a direct correspondence with the structure of social civilization. It cannot transcend the stage of social civilization but can only be conceived in the context of the social civilization structure. , at the same time, legal culture also has many independent variables and other variables. Some scholars pointed out that “legal culture is an extremely important variable. In a sense, it is the fuel that drives the legal machine to operate and work, and it determines the demand pattern of the legal system. "[14] When legal culture exists as an independent cultural phenomenon, it also means that the variables of legal culture come from the legal system itself and the practice of social civilization. Therefore, Pound had such a famous saying: "In the last century, We study law from within, jurists today study law from without. ” [15] This “external” is both historical and current; it is both static and stable, and dynamic and changing. From the evolution of American common law, we can clearly see the richness of the formation process of legal spirit and legal culture.

The process of judicial operation is derived from social variability, which not only reflects the interdependent relationship between law and society, but also reflects the law of existence and development of law itself. Therefore, The process of justice is naturally a key word in the investigation of legal culture. If we have the concept of process of legal culture, we will have new discoveries and understandings when we look back at the definition of legal culture. For example, we will emphasize the law. Culture is the concept and value that is internalized in ideas, systems, facilities, and people's behavior patterns. It obviously needs to be enriched and improved. In short, the so-called legal culture is the legal operation process that arises with the development of social civilization. The general term includes two components: internal legal culture and external legal culture. Internal and external legal culture interact with each other to promote the civilized process of legal culture, and process is one of the characteristics of legal culture.

It shows that legal culture is not a static, traditional culture, but an action and current culture; it is not a conceptual culture, but a combination of values ??and judicial operation ontology, and it is the same as A civilized form of judicial progress. The external judicial system, judicial procedures, judicial symbols and other materialized aspects are equally important and go hand in hand with the internal values; rather than being contained and dissolved by values.