Introduction to Legal Culture

Author: Li Shaowei
Publisher:
Publish Date: 2005-09-01
Features: In his work The Social Contract, Rousseau classified laws into four categories, the most important of which is the law as a legal culture. He wrote: "Beyond these three laws (political law, civil law, criminal law—editor's note), there must be a fourth, and the most important of all; this law is not inscribed on marble or bronze, but rather on the hearts of the citizens. It forms the true constitution of the state; it gains new strength every day. When other laws grow old or die, it can revitalize or replace them. It can preserve a nation's creative spirit and, imperceptibly, replace the force of authority with the force of custom. I am speaking of mores, customs, and especially public opinion; this aspect is unknown to our political theorists, yet the success of all other aspects depends on it. Rousseau's 'mores,' 'customs,' and 'public opinion' are, in fact, manifestations of legal culture. The importance of legal culture lies in its power, and this power is extraordinary. Legal culture is powerful because it is not merely 'thought' or 'theory' in the minds of a few thinkers or theorists of a nation, but rather a collective unconscious or collective intention shared by all its members—it is 'culture.' Many scholars often confuse 'thought' or 'theory' with 'culture,' equating them, which is incorrect. 'Thought' or 'theory' is consciously constructed by a few thinkers or theorists, and it may be rational and beautiful, but compared to 'culture,' it lacks power and can change rapidly in a short time. For example, the 'theory' of 'class struggle as the core' can be changed within a few years. But 'culture' is different—it is relatively stable and very powerful because of the multitude of its subjects (all members of the nation). The powerful nature of 'culture' makes it the foundation of 'the success of all other aspects.' Therefore, the success of the rule of law as a new form of social structure in China also depends on whether a new legal culture can be constructed on this ancient land. Without the support of legal culture ingrained in the hearts of all members of the nation, the rule of law as a system would be unstable. Thus, it is necessary to develop a rational and conscious understanding of legal culture. Clearly, a rational and conscious understanding of legal culture belongs to the realm of 'thought' or 'reasoning.' Although the power of 'theory' is limited, 'theory' and 'thought' can be transformed into 'culture.' 'Thought' transforms into 'culture.' Only then does the power of 'thought' become strong. Our theoretical research on 'legal culture' aims to transform our 'thought' into 'culture,' making it the strong cultural psychological and spiritual support for the rule of law. The rule of law in China faces two sets of legal cultures: traditional Chinese legal culture and Western legal culture. Chinese rule of law must largely be transplanted from the West, which is an unavoidable destiny for the Chinese, much like the market economy, which the Chinese could not avoid despite decades of effort. However, Western legal culture is 'culture' in the West but remains 'thought' or 'theory' in China. How to transform Western legal culture from 'thought' to 'culture' in China is an important task for intellectuals, as well as a work of cultural enlightenment and civilizational renewal. An Introduction to Legal Culture aims to accomplish this important task. The philosophical foundation for our 'theoretical' work is the 'dual-element philosophy' we have contemplated over the past few decades. The 'one' refers to the human being as the (foundation), especially the individual with personality, while the 'two' refers to the individual's sensible existence and rational transcendental existence. According to this philosophy, the ultimate purpose of all social institutional construction is to fulfill individual freedom—here, the individual is an equal one. Any institutional construction that contradicts this ultimate purpose of individual freedom can be called 'alienation.' 'Legal culture' can also be seen as an implicit institution in people's hearts, and thus it should also take individual freedom as its ultimate value. Individual freedom is precisely the central value we revolve around in this book. We strive to construct this core value in the hearts of the Chinese people and transform it from 'thought' to 'culture.' Culture is the objectification of human inner essence and structure, and the structure of human existence is a dual-element existence of the empirical and the transcendental. Therefore, culture also has an empirical and an transcendental dimension. The discussion of legal culture in the book focuses on both its empirical and transcendental dimensions. From the former perspective, we discuss the empirical foundations and conditions of legal culture, such as its social, economic, and political foundations and conditions, which are elaborated in chapters ten, twelve, and thirteen. From the latter perspective, we discuss the transcendental basis and premises of legal culture, such as its philosophical and cultural conceptual foundations and premises, which are explored in chapters two, three, four, five, six, and seven. Regarding the concept of legal culture itself, we discuss it from different perspectives in chapters six and seven. The cultural concept of legal culture in the cultural studies perspective emphasizes a narrow definition of culture, where legal culture is an internal, implicit, and spiritual existence. In the final three chapters, we discuss the transformation and modernization of legal culture. This is the general content structure of the book, and I briefly introduce it to the readers here.