Traditional Chinese law v. Weberian legal rationality 法理学英文论文--.doc
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1、Traditional Chinese law v. Weberian legal rationalityAbstractA universal theory of law cannot be based on Webers paradigm of the rationality of western law. Abstraction and systematization of law are compared in western law and traditional Chines codes. Chinese law was not substantively irrational b
2、ut governed by ethical and status distinctions. Chinese legislators worked with humanistic goals. The empiricism of traditional Chinese law is as valid a form of intellectuality as the deductive rationality of Civil Law and the inductive rational-ity of Common Law.Keywords: Universal theory of law,
3、FALV, formal and substantive irrationality, empirical law-finding, Confucian ethics.1. Universal theory of law and western particularitiesSince Jeremy Bentham attempted his general jurisprudence, the efforts for a universal theory of law have been continuing for quite a while.1 The theory is indeed
4、significant especially in this global-ized world of cultural pluralism because such a theory, if completed, would solve the problem of a universal concept of law and construct one fundamental theory applicable to different legal systems in the world. Only in this way could we really get rid of all t
5、he barriers to communication and mutual understanding between different legal systems and cultures. Such a theory is not only necessary but even seems possible. Among all the differences between different legal systems we find they share at least one commonality, which is what could be named as law
6、in English or FALV in Chinese and this makes the two terms generally inter-translatable. This basic commonality may be 1. Jeremy Bentham, Of Laws in General (London: Athlone Press, University of London, 1970).30 Max Weber Studies Max Weber Studies 2010.the basis for a possible universal theory of la
7、w. Whatever the local peculiarities of different legal systems on the outside, this should not prevent us seeing the inner nature of law and constructing a universal theory of law. Of all the local particularities, the western ones are likely to be the most dangerous and have caused the worst proble
8、ms. This is due to the dominant position that western law enjoys in the contemporary world and its overwhelming influence. Chinas western-oriented legal reforms can be an example.2 Chinese people, however, are not the only ones overwhelmed. Very many western theorists of law are prepared to indulge
9、themselves in the current dominance of western law. But they may easily mistake their home particularities as being universal to all laws and cultures. This may well be one reason why the so-called general jurisprudence, which started in the West, has yet to be successful. For the sake of a sound ge
10、neral jurisprudence, the western forefathers need to step away from absolutizing western particularities.3 Max Weber constructed his theory of law, a part of which is his paradigm of legal rationality. With its supposed universality, this paradigm has been used by him and his followers to assess tra
11、di-tional Chinese law and other non-western legal systems.4 Typically, western laws, especially the Continental tradition, are judged to be closest to the ideal type of rationality while traditional Chinese and other non-western laws are placed on the irrational pole of the ideal type. But the quest
12、ion needs to be asked whether the Weberian para-digm has successfully excluded its home particularities and accom-plished the goal of true universality. This paper seeks to investigate these questions through a re-examination of the Weberian paradigm as applied to traditional Chinese law. 2. Zhang J
13、infan, The History of Chinese Law (Beijing: China Politics & Law Uni-versity Press, 2002), p. 292. 3. Su Li, The Rule of Law and Its Local Resources (Beijing: China Politics & Law University Press, 1996); William Twining, Globalisation & Legal Theory (London: But-terworths, 2000). 4. Roberto Unger,
14、following Webers suit, first gave his own special definition of legality based on the European case, then claimed that true legality by his defini-tion can only be possible in western Christian Europe but never in the oriental or non-western world, so giving the European-based definition the additio
15、nal implica-tion of being universal. Roberto Unger, Law in Modern Society: toward a criticism of social theory (New York: Free Press, 1976), p. 66. Qian Traditional Chinese law v. Weberian legal rationality 31 Max Weber Studies 2010.2. Distinctions between western rational naturalism and Chinese emp
16、irical humanismWestern legal thought as a whole, with its rationalist traditionwhether Anglo-American or Continental, is today accepted as uniquely the best in human legal history, and this is even accepted in non-western countries like China. The confirmation of whether the western laws are really
17、so unique, or not, could be achieved by comparing the western legal system with that of pre-19th cen-tury China. Contemporary scholars, both eastern and western, take these systems to be essentially different in nature.5 According to the Weberian paradigm, one difference is that the traditional Chin
18、ese law is not rational, both formally and substan-tively. The lack of formal rationality of traditional Chinese law is usually observed by westerners from two technical perspectives: the lack of generalizability through abstraction and the lack of systematization.2.1. TechniquesMax Weber takes the
19、main characteristic of formally rational law as the supremacy of general abstract rules.6 It is argued that traditional Chinese laws lacked formalistic discussions of abstract principles.7 Of course the traditional Chinese codes have also arrived at a certain degree of abstraction of social realitie
20、s. But the degree of abstrac-tion is much lower than that of the western codes. For example, the legal concept of social bonds in traditional Chinese codes, appear in a more concrete way than their equivalents in the western laws. On the other hand, some general and abstract concepts, like legal per
21、son, or right, which have a high degree of abstraction and are fundamental to western laws, do not have their equivalents in tradi-tional Chinese laws.8 5. Fan Zhongxin, Coincidences and Differences between Chinese and Western Legal Culture (Beijing: China Law & Politics University Press, 2001); Gao
22、 Daoyun, Gao Hongjun and He Weifang (eds.), Recent American Academic Writings on Traditional Chinese Law (Beijing: Tsinghua University Press, 2001). 6. Max Weber on Law in Economy and Society,edited with an introduction by Max Rheinstein and translated by Edward Shils and Max Rheinstein (New York: S
23、imon & Schuster, 1967), p. 354. 7. Robert Marsh, Webers Misunderstanding of Traditional Chinese Law, American Journal of Sociology 106.2 (2000): 281-302. 8. Yu Jiang, Formation and Development of Legal Terminologies in Contem-porary China, Chinese and Western Legal Traditions 01.1 (2001): 24-66.32 M
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