A BRIEF STUDY ON THE VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

Zhao Qian & Fang Qian

TABLE OF CONTENTS

I. INTRODUCTION

II. THE VIEW OF COMPOSITE CONNOTATION: LOGICAL STARTING POINT OF THE              VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

A. The Connotation of Elements of Legal Culture

B. The Connotation of Functions of Legal Culture

C. The Connotation of Discipline of Legal Culture

III. THE VIEW OF STRUCTURAL ELEMENTS: CARRIER FORMAT OF THE VIEW OF                  SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

A. Internal Structural Elements of Legal Culture

B. External Structural Elements of Legal Culture

IV. THE VIEW OF TYPIFICATION COMPARISON: COGNITIVE CLUE OF THE VIEW OF            SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

A. Related Elements of Similarities and Differences of Legal Culture

B. Inheritance Elements Related to Legal Culture

V.  THE VIEW OF GUIDANCE IN PRACTICE: DEVELOPMENT ORIENTATION OF THE              VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

A. Value Elements of Legal Culture

B. Guidance and Feedback Path of Legal Culture

VI. CONCLUSION

In the 70 years since the founding of the People’s Republic of China, surrounding the ontology of composite connotation and structural elements of legal culture and the applicability theory of typification comparison and guidance in practice, a multi-dimensional, diversified and multi-level view on socialist legal culture with Chinese characteristics has been gradually formed. The view of composite connotation is the logical starting point of this kind of view of legal culture, the view of structural elements is the carrier format of this kind of view of legal culture, the view of typification comparison is the cognitive clue of this kind of view of legal culture, and the view of guidance in practice is the development orientation of this kind of view of legal culture.

I. INTRODUCTION

In the 70 years since the founding of the People’s Republic of China, along with  the gradual deepening of Chinese scholars’ research on the socialist legal culture with Chinese characteristics, the ontology research on the composite connotation and structural elements of legal culture and the application research on typification comparison and guidance in practice have tended to possess the multi-dimensional, diversified and multi-level features. Surrounding the landmark research of Professors Liu Zuoxiang, Zhang Wenxian and Gao Hongjun, and in addition to the representative and differentiated views, a certain consensus on the different views on legal culture has been reached, which led the academic circles to explore the deconstruction process of the view of socialist legal culture with Chinese characteristics from different perspectives.

The view of legal culture in its broad sense should be characterized by ‘legal ideology and the aggregate of legal norms, legal systems, legal organizations and legal facilities adapted to legal ideology’, and be interpreted specifically from two interrelated aspects: ‘legal culture in the sense of methodology and objectified legal culture’. The view of legal culture in the medium sense should take the view of culture in its medium sense, i.e., ‘the aggregate of the spiritual wealth created by human beings’, as the research object, and interpret it specifically from the spiritual part of the legal phenomenon of ‘the aggregate of group cognition, evaluation, mentality and behavioral pattern concerning law and legal life’. The view of legal culture in the narrow sense focuses on the non-ideological part of legal ideology, and interprets it specifically from ‘legal values and concepts rooted in history and culture’, that is, the spiritual part of legal phenomenon.

On this basis, the study on the view of socialist legal culture with Chinese characteristics is conducted only revolving around the specific field of the view of legal culture in the medium sense, which is more relevant and directive to the promotion of the construction of socialist rule of law with Chinese characteristics, so as to explore the legal psychology, legal consciousness and legal thought and the corresponding guidance of behavioral pattern that are in line with the actual construction of rule of law. Efforts should be made to define the scope of the view of composite connotation, the view of structural elements, the view of typification comparison and the view of guidance in practice, and clarify the main idea and law of internal change of various categories from the aspects of basic theory, research methods, comparison between China and the western countries, and comparison between tradition and modernization, thus further accomplishing the logical starting point, carrier format, cognitive clue and development orientation of the view of socialist legal culture with Chinese characteristics, so as to clarify the problems and future practice of this kind of view of legal culture.

II. THE VIEW OF COMPOSITE CONNOTATION: LOGICAL STARTING POINT OF THE VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

The view of composite connotation aims, based on the ‘individualized’ legal and cultural attributes generated from different social concepts of ‘attitudes and opinions towards society and corresponding behavioral pattern’ formed in the process of people’s perception and understanding of society and carrying out relevant activities, to clarify the ‘unique attributes’ of the view of socialist legal culture with Chinese characteristics as ‘a part of social ideology’ from the perspectives of three most direct and basic unit forms of elements, functions and disciplines respectively. In the end, under the guidance of composite connotation of the view of socialist legal culture with Chinese characteristics, efforts should be made to include legal concepts, legal consciousness, legal thoughts, legal acts, legal institutions and facilities, legal system and legal norms, enforcement of law and value of law and other legal phenomena into it, and highlight their universality and multidimensional nature, so as to link up with various doctrines of foreign legal cultures and reduce the conflict of laws and cultures caused by legal transplantation and globalization.

A. The Connotation of Elements of Legal Culture

Exploration of connotation of elements of legal culture is aimed at clarifying ‘basic elements and components of legal culture’ and trying to explore its broad and narrow propositions, that is, to emphasize the frequency or intensity of various elements of legal culture in order to reveal the elements of legal culture that affect and restrict the realization of legal benefits, and make the best choice, so as to promote the modernization of China’s traditional legal culture. The dispute in the broad and narrow sense is mainly reflected in whether legal acts (or human behavioral patterns, group life patterns, etc.), legal carriers (including institutions and facilities, normative documents, precedents and customary law, etc.) should be subsumed.

The broad category of the connotation of elements of legal culture is ‘generally adhered to by Chinese scholars’, who attempt to describe it objectively and externally based on the universal and unified standards and quantitative indicators. They hold that it should subsume ‘legal concepts, legal consciousness, legal acts, legal institutions and facilities, legal systems and codes and precedents as symbolic systems, unwritten practices and customary law’, as well as all legal phenomena. Or from the perspective of the motivation of the development and change of legal culture, they believe that legal culture is ‘composed of legal thoughts, legal norms, legal facilities and legal art’, and is ‘a series of legal activities and aggregate of their results related to law, legal thoughts, legal systems and legal facilities in the superstructure of society’. Some scholars focus on the living spirit of law and the real image of legal operation. They believe that legal culture should be ‘the crystallization of all legal wealth, including legal system and norms, as well as legal thoughts and consciousness.’ Some scholars also interpret it in the scope of legal activities under the framework of culture, believing that it is ‘the aggregate of the part of culture related to law and the content of the overall function of culture acting on legal activities, legal ideology, level of legal coordination, deposition of legal knowledge, and the overall function of legal culture.’ On this basis, the academic circle has reached a relatively broad consensus on the connotation of elements of legal culture in the broad sense: ‘First, legal culture is an important component of social spiritual civilization; second, legal culture is the crystallization of wisdom and spiritual wealth created by human legal practice; third, legal culture is the aggregate of legal ideology and the legal norms, legal systems, legal organizations and legal facilities that are compatible with ideology; fourth, legal culture indicates the degree and state of the development of law as a social regulator, and the level of people’s understanding, values, attitudes, beliefs and knowledge of legal phenomena and legal activities, such as laws, legal institutions and legal professionals exercising legal authority.’ However, legal culture in the broad sense is not a ‘cultural hodgepodge of many elements of law, nor does it concentrate on the concrete analysis of the various elements contained in the concept. Instead, it intends to link up various phenomena, activities and elements related to law in human society from a brand-new perspective, making it an important subsystem of the human cultural system, and an integral cultural type, focusing on the discussion of the relationship between the various elements within the system and the relationship with the external system’, thus forming a rigorous scientific system. Therefore, the connotation of elements of legal culture in the broad sense should include not only legal concepts and legal consciousness, but also legal systems and legal norms, as well as various organizations and material facilities in the process of legal operation. Among them, the interactive relationship between legal concepts and legal systems ‘is the main research object of legal culture.’

The connotation of elements of legal culture in the narrow sense is ‘mainly popular among most western scholars’. They often incorporate the system itself into the category of legal culture, holding that ‘legal culture is the legal concept and the legal consciousness. It involves only the attitudes of people of different nationalities, different regions and different classes towards the law and judicial institutions, legal professionals, etc., the choice of ways to resolve conflicts, the standards of justice, and measure of value, etc.’, or try to impose an internal subjective restriction on the concept of legal culture, believing that it ‘refers only to legal concept, legal psychology, legal experience and knowledge, legal tradition, as well as some legal systems and legal ideological systems directly related to them.’ Some scholars excluded legal norms from the scope of legal culture, holding that ‘legal culture is actually the aggregate of various concepts concerning the emergence, development and operation mechanism of law. It is composed of four elements, namely, the social psychology of law, the ideological and theoretical system of law, the externalization of theoretical system of law, the setting of people’s behavioral patterns, and the behavioral patterns.’ They further define it as a series of legal value orientation, holding that it ‘refers only to a set of values, attitudes and beliefs related to the legal system’, and it belongs to the category of spiritual civilization, ‘reflecting the level at which the quality of the law as a special social adjuster has been achieved, reflecting the valuable legal ideas and experiences accumulated in history, reflecting the legal technology of formulation and enforcement of laws, and reflecting the progress of laws.’ Or they also hold that ‘it mainly refers to the conceptual and value systems (including knowledge, beliefs, judgments, attitudes, etc.) of the law (including laws, legal institutions and facilities, etc.) and the human behavioral patterns closely related to this.’ The elements of legal culture in the narrow sense emphasize the subjective aspects of legal phenomena, mainly including legal concepts and legal consciousness. Because of its limitations, it will also try to expand its own boundaries to cover such elements as legal system and legal norms.

With the deep advancement of the practice of comprehensive framework for the promotion of rule of law, the relevant research on the construction of legal culture and the traditional legal culture has gradually become a hot topic. Legal culture, as a universal concept, tends to be tacitly accepted as approaching the connotation of element in the broad sense, and the interpretation of the relevant interpretations resulting from it tends to be diluted. For instance, ‘the basic spirit of absolutism, criminalism, ritualism, familism and natural justice contained in Chinese traditional legal culture has a profound influence on the modernization of legal culture and runs through it.’ Among them, ‘because the concept of benevolence reflects the requirements of the moral level, so the legal provisions and even the legal system conform to the moral concept and moral system, which is the reflection of the traditional legal culture.’ In addition, ‘it also helps to avoid the distorted development of the value of rule of law in contemporary China and provide a good social soil for the realization of the value of rule of law through the support of neutralization and correction in value content, expansion in value pursuit and harmony in value relationship.’ Based on this, ‘the contents contained in legal culture such as legal consciousness, legal concepts, legal thoughts, legal doctrines, legal norms, legal enforcement, legal status, legal authority, legal values, legal spirit, the relationship between law and morality, as a reflection of human society’s claim to law, views and pursuit of the value and role of the law, can be embodied in the connotation of socialist core values.’ The above viewpoints attempt to define the connotation of elements of legal culture from the perspective of the two-dimensional relationship between Chinese traditional legal culture and modern legal culture.

The role of the excellent traditional legal culture to support and correct the realization of the value of the rule of law should be maximized so as to realize the connection between the value of the traditional legal culture and the value of modern rule of law; the socialist legal and cultural construction with the socialist core values should be used to guide the construction of the socialist legal culture and promote the modernization of the socialist rule of law. 

B. The Connotation of Functions of Legal Culture

The function of legal culture is to ‘constantly introduce human creativity and energy into the track of cultural value creation, and prevent it from flowing into the wrong anti-cultural and anti-social path’. It is ‘to maintain social order and restrain human behavior; it is reasonable and secular, and is used as a means to implement a certain social system and politics’. The purpose of exploring the connotation of functions of legal culture is to clarify the influence or role of legal culture on individuals and society, so as to ‘further understand and develop the ability of legal culture system to act on legal life and social practice’. There are five functions of the legal culture in the narrow sense involved: ‘The ultimate significance of the representation function is that legal culture indirectly represents the degree of development and reality of the material civilization of a society; the communication function is to achieve communication between different legal cultural systems by means of legal language and legal graphics, so as to eliminate or reduce communication barriers; the selection function indicates that the legal culture guides people to recognize and evaluate various interests and claims, and provides the basis for proper judgment and the criteria for making correct choices; the directive function aims to highlight the role of legal culture in driving and controlling the operation of the legal system, triggering citizens’ legal motivation, guiding citizens’ legal acts, and regulating the relationship between citizens and law; the integration function is to integrate different elements or parts of legal culture into a delicate network system.’ These five functions are based on the interrelation and function between legal culture and social civilization, elements of legal culture, legal culture and legal system, and different legal culture systems. The purpose is to guide people to make correct evaluation and choice of legal value, so as to promote the construction of legal culture framework in line with the construction of a socialist country ruled by law.

On this basis, these five functional areas of legal culture have been widely recognized by the academic circles, and a certain consensus has been reached on the basic effects and decisive factors of the five major functions on legal life and social practice. Efforts have been made to try to prove the multi-perspective, multi-dimensional and multi-functional attributes of legal culture from various perspectives. Firstly, the functions of legal culture are explored from the perspective of the role of culture in law. The legal culture is ‘placed in the cultural background and environment, so that it can acquire systematic quality and cultural orientation, and grasp its internal relations and basic institutions from the internal elements of legal culture and their interrelations, and consider it to be the unity of legal concepts, legal systems, legal institutions, legal facilities, legal subjects, legal activities, etc., as well as the legal value, legal ontology and legal methods that run through this unity.’ ‘As an organic combination of culture in its broad sense and law in its narrow sense,’ legal culture, ‘like culture, can be divided into many layers, such as the material level, i.e. facilities and means, and tools for engaging in legal activities; the institutional level, i.e. the layer concerning the provisions, regulations, documents, rules and principles and institutions for the implementation of laws; the level of customs and habits, that is, the expression of customs, rituals and psychological structure related to law; and the level of thoughts and values, that is, the concepts, thoughts, theories, and doctrines related to laws’. The above viewpoints have proved the function of representation and integration of legal culture from many aspects and multiple levels of path. Secondly, the function of legal culture is explored from the legal point of view. It is believed that legal culture is ‘the aggregate of various concepts concerning the generation, development and operation mechanism of law’. ‘Any effective law must have a basic coordinated relationship with the inherent concepts of the people living under it.’ This kind of viewpoint aims to highlight the directive function of legal culture in regulating the relationship between citizens and laws. Thirdly, the function of legal culture is explored from the perspective of ‘the structure system of legal life’. It is believed that legal culture ‘consists of a special orientation pattern which endows legal process with order, form and meaning’. It is ‘a complex of tangible and intangible institutional cultures and spiritual cultures originating from history and inheriting and connecting with each other in different periods and changing differently’. This kind of view amends and enriches the connotation of the concept of legal culture, aims to achieve the integration of different systems of legal culture, and highlights the communication function of legal culture.

C. The Connotation of Discipline of Legal Culture

The purpose of exploring the connotation of discipline of legal culture is to clarify the disciplinary attributes of legal culture as ‘an emerging interdisciplinary subject generated by the intersection of science of law and science of culture.’ It focuses more on ‘researching the entirety, state and basic law of legal practice of human beings, paying attention to exploring the basic spirit and macro-pattern of legal practice of human beings, and revealing the ideology which plays a dominant role behind the tangible legal practice’. Its main feature is ‘to regard legal practice of human beings (including legislation, justice, law-abiding and knowledge of law) as a complete and unified social phenomenon, trying to explore the regularity of legal practice with a macroscopic and comprehensive approach.’ It attempts to shift from simple research on concept interpretation to interdisciplinary rethinking on mixed concept and consciousness of problems. Based on the multidimensional nature of cultural phenomena, it ‘can be understood as a kind of position and method, which is not only a system, thought and doctrine related to legal phenomena, but also a personal or collective psychological tendency’, and ‘regarding legal culture as a position and method aims at treating law as a part of culture and interpreting it through culture, characterized by empiricalness, wholeness and comprehensiveness.’ Based on this, ‘the study of law should not only be the study of positive law or law, but should be the study of the all-round, whole-process and three-dimensional integration of law’, that is, trying to explore the specific connotation and concept innovation of the discipline of legal culture to show a new attitude or a new starting point for the study of legal culture. 

There are other viewpoints trying to transcend legal culture, the background of objectivity, and ‘clarify culture by law and law by culture’ from the perspective of cultural paradigm, and take it as the cornerstone of the construction of legal culture. Furthermore, they explore ‘whether the construction of the concept of legal culture satisfies and realizes its problem consciousness in the research, and whether the success or failure of transplantation of the paradigm involved is closely related to the academic soil of the subjects it transplants to.’ As an important aspect of the discipline construction, legal transplantation should be placed in the ‘globalization environment, and reconstruction of legal culture shows its comparative advantage of unity of universality and particularity very clearly, while the important form dimension of reconstruction is the introduction and transplantation of law’. The global reconstruction participated by diversified legislative bodies is not a one-way process of introducing legal culture, but a dynamic process of extension. ‘It is reflected not only in the process of its occurrence, development and ultimate realization, but also in the process of introducing and transplanting advanced foreign legal culture and exporting excellent local legal civilization in the process of interaction.’ Finally, they attempt to reconstruct the concept of legal culture by integrating multicultural factors from the perspective of legal culture. Based on this, the study of legal culture from the concept itself to the level, paradigm and dimension of legal culture under the influence of legal transplantation will, to a certain extent, renew and change the existing research paradigm of legal culture, and promote the deeper and wider field of legal culture research.

 

III. THE VIEW OF STRUCTURAL ELEMENTS: CARRIER FORMAT OF THE VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

The view of structural elements aims to analyze the ‘constituent elements, mutual relations and nature of interaction’ of the objective things involved, based on the different structural elements ‘reflecting the unique attributes’ related to legal culture, in order to identify the scope of things reflecting the unique attributes of the view of socialist legal culture with Chinese characteristics according to the two bearing forms of internal structural elements and external structural elements. 

A. Internal Structural Elements of Legal Culture

Exploring the internal structural elements of legal culture aims to clarify the ‘relatively stable and orderly combination of legal and cultural elements, especially the ties or intermediaries that link individual elements with other elements and link elements with systems’. In fact, ‘the structure of socialist legal culture is a holistic cultural structure consisting of an implicit deep structure and an explicit surface structure’, and the internal structure is the deeper structure that determines and restricts the nature and development direction of legal culture. Therefore, typological analysis on the nature of legal culture should be conducted at the horizontal level (value) and vertical level (fact) according to the basic elements contained in legal culture. Efforts can be made to try to follow the development sequence of the structure of legal culture, and analyze the multi-level internal structural elements of legal culture from the two aspects of hierarchical structure and system structure.

On the one hand, as far as the hierarchical structure of legal culture is concerned, firstly, the dual structure theory is characterized by ‘deep structure and surface structure’. ‘Deep structure refers to the aggregate of legal ideology that constitutes one of the two major contents of legal culture, including legal psychology, legal consciousness, and legal ideology; the surface structure refers to the externalized manifestation of legal ideology as the deep structure of legal culture, i.e. the aggregate of legal norms, legal systems, legal institutions and facilities that are compatible with legal ideology.’ The theory tries to divide the extension of legal culture into legal ideology and its externalized manifestation at a relatively shallow level, and does not involve the non-ideological part of legal ideology. With the further development of social practice, the form of legal culture is becoming more and more abundant, and the extensiveness of the theory needs to be further improved. Second, the ternary structure theory is characterized by ‘surface structure, middle structure and deep structure’. ‘The content contained in the surface structure is mainly based on the legal activities of people on a certain economic basis as well as the resulting legal system, legal institutions and more external legal provisions, precedents, and so on. The content contained in the middle structure is mainly the legal relationship between people under certain social and economic conditions, and the legal norms, legal thoughts and legal experience and techniques thus formed. The content contained in the deep structure is mainly the legal psychology and the legal expression, behavioral pattern related to it as well as the legal concepts, the highest manifestation of legal psychology, etc.’ This theory can be regarded as the mainstream viewpoint for the study of the internal structure of legal culture, but it only sets two research directions, horizontal and vertical, which need to be further substantiated. Third, the three-dimensional structure theory is characterized by ‘vertical level, horizontal level and temporal sequence’. ‘Vertical level can be subdivided into representation level, orientation level and latent level, and then linked with horizontal level. The representation level can be boiled down to the level of legal systems, legal norms and legal operation; the orientation level can be boiled down to the level of legal thoughts, legal education and legal dissemination; and the latent level can be boiled down to the level of legal mentality, legal identification and legal action. The temporal sequence only refers to two elements, legal tradition and legal experience.’ This theory consists of three vertical levels, nine horizontal levels, and two temporal sequences to form a network of legal and cultural structures with rich connotations and complex relationships, thus achieving an all-round analysis of the extension of legal culture. It not only covers the original horizontal and vertical divisions, but also creatively divides it from the perspective of temporal sequence, forming a more comprehensive division model of the hierarchical structure of legal culture. However, its practical applicability needs to be further proved.

On the other hand, as far as the systematic structure of legal culture is concerned, first, according to the different cognitive depth of legal culture, the theory of quaternary structure is characterized as ‘cognitive structure, evaluation structure, psychological structure and behavioral pattern structure’. ‘Legal cognition refers to people’s perception and understanding of the content, form and operation of law, the nature and function of law, and the difference and connection between law and other social phenomena; legal evaluation refers to the value judgments made by members of society on legal norms, legal systems, legal activities, legal functions and other legal realities, and the value setting and selection made on this basis, reflecting a certain positive or negative relationship between the subject’s needs and the law; legal mentality is the general mentality formed in the long-term legal life of human beings, and is the crystallization and precipitation of legal experience and legal emotion of society, the masses and individuals; the behavioral pattern is the direction or pattern of group legal acts which have been modeled.’ The elements of this quaternary structure are independent and connected with each other, and form a unified and orderly interaction system. Some of the changes may cause changes in other parts. Their internal relationship is that ‘legal evaluation is the core of legal culture, which generally restricts the trajectory and direction of the whole cultural system and determines the mode or type of legal culture; legal evaluation is premised on legal cognition; legal cognition and evaluation are carried out within a certain legal mentality structure or at the logical starting point of legal mentality; on the one hand, the legal behavioral pattern is the cohesion and solidification of legal cognition, evaluation and mentality, and on the other hand, the legal behavioral pattern provides a tangible structure for the expression and dissemination of legal cognition, evaluation and mentality.’ Second, the theory of ‘unitary running-through, dual structure and multi-dimensional ontology is characterized by ‘the combination of formal structure and content structure’. ‘Unitary running-through means that legal culture runs through human material culture, institutional culture and spiritual culture; dual structure refers to the formal structure and content structure of legal culture; multi-dimensional ontology refers to the various elements of legal culture and the relationship between them. Among them, the formal structure is the manifestation of legal culture, including legal mentality, legal identity and legal acts. The content structure of legal culture mainly refers to the state of legal consciousness, legal thoughts, legal education and legal dissemination in legislation, judicature, legal systems, and in society.’ This doctrine highlights the multidimensional relationship between various elements of legal culture which influence and promote each other, but it is similar to the dualistic structuralism in nature. Third, the theory of internal organizational structure of system is characterized by ‘material level, mental and material level and psychological level’. ‘The material level mainly refers to the legal organizations such as courts, prisons and detention houses; the mental and material level mainly refers to the legal system, political system and customs and habits established by people in social interaction; and the psychological level mainly includes legal values, legal thinking, legal consciousness, moral sentiment and national character.’ The evolution process of Chinese modern legal culture reflects the law of developing, interacting and staggering in turn along these three levels, and it is an overlapping and interweaving system in itself. This theory can be further refined and classified under these three levels. It should be more in-depth in the exploration of the structural elements, and the research objects involved should be broader. In addition, ‘the implicit legal culture lags behind the explicit legal culture, and there is also a lag between the various parts of the explicit legal culture.’ The distinction between implicit legal culture and explicit legal culture is also quite distinctive.

Generally speaking, the typification of the elements of internal structure of legal culture generally follows the horizontal or vertical dimension, and mainly demonstrates the hierarchical division of binary structure or ternary structure, from the two aspects of hierarchical structure and systematic structure of legal culture. With the improvement of the cognitive level in different times, the research field of the internal structural elements of legal culture has gradually broadened, the scope of division has become more reasonable, and the standards have become more detailed. 

B. External Structural Elements of Legal Culture

Exploring the external structural elements of legal culture aims to combine the ‘independence and continuity’ of legal culture, and clarify the external form of legal culture, in order to explain the typification elements of legal culture from a comparative perspective. Efforts can be made to try to analyze the pluralistic attributes of the external structural elements of legal culture from three aspects: the diversified types, the typological revision and the characteristics of national spirit.

Firstly, as far as the diversified types of legal culture are concerned, according to the different directions of historical development, legal culture can be divided into: ‘rule-of-law-based legal culture created by ancient Greece and Rome relying on the system of legal norms (a small number of moral and religious norms mixed); religion-based legal culture created by ancient Arabs relying on the system of religious norms (the legal norms were included into it and thus became the religious law); and ethics-based (rule of rites) of legal culture created by China relying on the system of ethical norms (criminal law developed on the basis of rites for the purpose of supplementing rites).’ Or legal culture can be divided into ‘religionism-based, ethicism-based and realism-based legal culture’, taking the basic spirit as the standard on which the content of legal norms is based. There are also ten types of divisions of legal culture according to different factors such as the basic spirit, procedures and methods and regions: ‘region-based, legal-system-based, nation-based, social-form-based, production-form-based, history-based, cultural-form-based, religion-based, code-based and state-based.’ According to the different divisions of the interest structure under the economic form, the legal cultural circle can also be divided into ‘the public law culture mainly based on punishment and the private law culture emphasizing the individual interest standard, emphasizing the individual freedom and the protection of individual rights and interests’. In addition, ‘according to the criterion of legal tradition which guides legal practice activities, legal practice activities worldwide can be divided into two types: western legal culture and eastern legal culture; and worldwide legal practice activities can be divided into three types according to the process of socialization of value basis and the macro-style legal system of legal practice activities: case-law-based culture, statutory-law-based culture and mixed-law-based culture.’ The differences in politics, economy, culture, nationality, and historical traditions of the various nations, regions, and countries in the world have formed distinctive legal cultures, which is a necessary prerequisite for achieving diversified types of legal culture. ‘The classification of legal culture, to a certain extent, reflects the legal cultural differences in fact and in phenomenon at all times and in all countries, and has certain significance and value in promoting the development of socialist legal culture. However, classification is relative rather than absolute, and there is no clear boundary between different types of legal culture.’

Secondly, as far as the typological revision of legal culture is concerned, with the gradual maturity of the typification study of legal culture, the limitations of typification study itself also appear. ‘Any ideal type cannot include all the elements of the object of study and the relationship between them.’ The drawback of the typification study of traditional Chinese legal culture is that ‘in order to meet the needs of typification study, the contents of the legal culture that do not meet the typification requirements are often discarded, thus generating the paradox of relativism and absolutism in legal culture research, the paradox of the dynamic change of legal culture and the static method of legal research, and the paradox of the interpretation of legal concepts and the study of legal functions.’ In addition, ‘the type and the fact itself can never completely coincide. The construction of the ideal type of the same problem should be pluralistic, open, and constantly revised. There is no ideal type of final statement for a certain problem.’ Therefore, we should criticize the typification criteria and system itself. No ideal type can contain all the elements or elements of the research object, and efforts should be made to try to construct a pluralistic, open and constantly revised typification system.

Finally, as far as the national spiritual characteristics of legal culture are concerned, the conflict of legal culture under the trend of internationalization has become increasingly fierce. As the core indicator of the typification of legal culture, national characteristics have also attracted much attention. It is believed that China’s legal culture is ‘not a single legal culture under ideal conditions, but a legal culture with considerable diversity.’ Its formation is quite complicated. ‘It includes both modern legal culture in the West and traditional Chinese legal culture.’ The specific elements involved include ‘the dominant authoritative socialist legal culture, the traditional Chinese legal culture since ancient times, the legal culture from western countries and the legal culture from the former Soviet Union.’ Of course, the legal culture itself should be diversified. ‘There are many manifestations of mutual exchange, accommodation, exclusion and collision among different legal cultures in the world. Because of the different objects of practice and the different geographical environment of practice, the different psychology, race and language of the subject of practice, the legal culture has distinct national diversity characteristics.’ ‘This situation is conducive to the integration of various legal cultures and the formation of a new legal culture on the basis of absorbing the essence of various legal cultures.’ In the face of ‘the different ethical and religious differences between Chinese and western legal cultures, there is indeed a distinction between ethnical Chinese legal culture and religious western legal culture.’ Furthermore, ‘while advocating socialist core values in the whole society, we should also guide the construction of socialist legal culture.’ Based on this, exploration of the multidimensional essentials of the typification standard of legal culture should be further conducted, research object of typification should be treated more dialectically, and the denotation of the socialist legal culture with Chinese characteristics should be combed out more clearly and dynamically. In particular, the spiritual guidance of the core values to the socialist legal culture with Chinese characteristics should be highlighted, trying to set the core values of socialism as the core criteria for launching relevant moral judgments.

IV. THE VIEW OF TYPIFICATION COMPARISON: COGNITIVE CLUE OF THE VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS 

The view of typification comparison aims to achieve ‘the inclusion of classification and observations into the discrete groups’ through ‘classifying, narrating and selecting’ the objective things in the legal culture, to obtain the relevant knowledge and information based on the difference and the reference so as to explore the related elements of similarities and differences between the view of socialist legal culture with Chinese characteristics and ‘different types of cultures’, and the inheritance elements related to ‘the summing up of history and the foresight of the future.’ 

A. Related Elements of Similarities and Differences of Legal Culture

The purpose of exploring the elements of similarities and differences of legal culture is to make a cross-cultural comparative study of legal culture ‘by establishing some basic points and clues of ideal types, paying attention to the differences of legal culture among different civilizations, nationalities or countries and discovering their similarities’, and then to generalize the basic characteristics of Chinese and western legal cultures in an integrated way so as to reveal the regularity proposition of the development of different types of legal culture. ‘The cultural principles of the common people in Chinese and western legal culture have commonality in the origin and principle of human culture and the axis and structural model of their development,’ and the proposition of types of culture can often affect the development direction and future destiny of all kinds of civilizations. In fact, ‘ideology, value system and lifestyle are often the basis of distinguishing cultural types (styles).’ Through the ontological comparison and derivative comparison of legal culture, the feasibility and obstacles of legal cultural exchanges between China and foreign countries can be seen and analyzed, so as to sort out the reference of foreign legal culture with a correct attitude.

On the one hand, as far as ontological comparison of legal culture is concerned, firstly, the theoretical research perspective of legal culture comparison has been broadened. For example, ‘the comparative basis of legal culture is both historical (cultural type) and realistic (traditional and new legal culture formed under the influence of tradition). Under the control of a sense of historical mission, comparative legal culture should take into account both the cultural type and the historical process.’ It is also believed that ‘the comparative study of Chinese and western legal cultures in the past focused on distinguishing the differences. In the future, while focusing on differences, efforts should be made to seek and explore the links, similarities and sameness between the two, reveal the essential manifestations of human legal cultures in the face of the same and different social problems, and then provide a perspective for the exchange and integration of the two.’ Based on this, further research on the comparison and influence of the function of legal culture has been carried out, ‘enumerating the similarities and differences of the superficial forms of law, exploring the causes of these similarities and differences, and looking for the functional equivalents between different societies, so as to make the similarities and differences reasonably explained. The influence of a foreign system or concept on transplanted society and its variation under the influence of local culture has also been conducted.’ Therefore, the comparative study of legal culture highlights the research approach of ‘comparing their similarities and differences comprehensively on the basis of comprehensive investigation, analyze their causes, and gain the insight into their laws and trends.’ Secondly, the scope of the object of legal culture comparison has been expanded. For example, ‘although both China and Japan are deeply influenced by Confucianism in traditional legal culture and possess the same or similar characteristics, these two countries have different key transformation processes in the modernization of legal culture. A comparative study is conducted on the social background and influence of the similarities and differences between China and Japan in the modernization of legal culture.’ Or ‘comparative analysis of the motives and causes of ancient Japanese input into the Chinese legal culture in the Tang Dynasty and China’s input into modern Japanese legal culture in the late Qing Dynasty has been conducted from the perspective of China-Japan legal cultural exchange, from the aspects of information transmission, political needs, social development, war victory and defeat, international competition, national dignity and the advantages and disadvantages of the law.’ ‘The processes, historical backgrounds, the grasp of Confucian legal thoughts and the results of modernization between China and Japan have also been compared.’ The comparative study of the modernization of modern legal culture between China and Japan can, to a certain extent, promote the summary of historical lessons and the absorption of foreign experience, and provide the necessary theoretical and practical reference for the modernization of the rule of law in China. Another example is ‘to compare the traditional differences between Chinese legal culture and western legal culture in terms of historical origins, legislations, thoughts, laws, spirits, and social practice basis from a macro and vertical perspective.’ Or ‘the social conditions and fundamental spirit of Chinese and western legal culture and their respective characteristics have been compared and analyzed.’ The vertical and horizontal comparison involved aims to clarify the differences between different cultural traditions, and at the same time to clarify the guiding effect of legal culture itself on the evolution of social life. Therefore, the construction of socialist legal culture with Chinese characteristics should be based on the study of the core of legal culture at all times and in all countries. Based on the inherent confidence in Chinese legal civilization, efforts should be made to try to explore a unique way to realize its own development.

On the other hand, as far as the derivative comparison of legal culture is concerned, the comparison of thinking mode and logic, legal transplantation and legal translation derived from the ontology proposition of legal culture have gradually been brought into the comparative scope of legal culture. For example, ‘in the western legal culture, logic occupies an important position. Logic is an important tool for analyzing law. It plays an important role in the improvement and codification of western legal thoughts. Therefore, the western legal culture also has the characteristics of analyticity. Due to the lack of analytical technology, China’s legal philosophy has never been separated from moral philosophy. Thus, Chinese legal culture does not have an independent spirit.’ Therefore, logic is an important factor in determining the characteristics of legal cultures of different civilizations, nations or countries. The correct use of logic tools helps to promote the independent construction and rational development of Chinese legal culture. As far as the concept evaluation and guidance are concerned, ‘the traditional legal culture in China and the West has a considerable degree of consistency. It is not a scientific research method to analyze and evaluate Chinese traditional legal culture based on western modern legal culture. A series of ideas and values that are closely related to the rule of law are the basic contents of modern legal culture, and the legal culture they constitute can guarantee the realization of the rule of law, and at the same time, only the rule of law is the only practical solution guiding the modernization of legal culture.’ The traditional technological tools such as legal translation will also ‘inevitably involve many problems in comparative law, and the study of comparative law has now expanded to the field of comparative legal culture and, as a result, legal translation will inevitably have an internal relationship with comparative legal culturology.’ Therefore, the comparative study of legal culture should take a dialectical and prudent view of the differences between Chinese and western legal cultures, which are not in a natural opposite, and the trend of integration and reconstruction should also be confirmed. It is necessary to fully respect the differences of different legal cultures and absorb the reasonable core so as to become a part of the socialist legal culture with Chinese characteristics.

B. Inheritance Elements Related to Legal Culture

The purpose of exploring the inheritance elements related to legal culture is to ‘conduct cross-cultural observation from the macro-historical perspective by the functional analysis approach, to find some commonalities among the traditional legal cultures of different civilizations, nationalities or countries’, to sort out the existing status of various elements of traditional legal culture since the legal system reform in the past hundred years, to make a vertical and deep analysis of legal culture, and to realize the deconstruction and development of the socialist legal culture with Chinese characteristics through the cognition and evaluation of the factors influencing ‘the legalization and institutionalization of democratic politics.’

Firstly, as far as inheriting association under the dual pattern of legal culture is concerned, although the current social life style is facing the transformation of a variety of functions and forms, the traditional legal culture still plays a key role in the process of maintaining social order and building the national rule of law. ‘The legal consciousness, customs and behavioral patterns existing in the Chinese people’ form a two dimensional pattern of legal culture, which is coexisting with traditional legal culture elements and new legal culture elements. In fact, ‘although China has formulated many laws, there is a gap between people’s actual values and the existing laws. Moreover, the situation is often that the system is modern or close to the modern, while the consciousness is traditional or closer to traditional.’ The two dimensional structure makes the inherent dimension of contemporary Chinese legal culture more complicated. Therefore, ‘China’s traditional legal system and culture, as well as people’s behavioral norms, behavioral patterns and views of law accumulated in those cultures, still exist in Chinese society profoundly, and regulate Chinese society, especially many aspects of China’s rural life, which affect the actual operation and effectiveness of the laws formulated by modern China.’ ‘Excellent traditional legal culture can correct the deviation of value in the development of rule of law.’ For the purpose of expanding the connotation and denotation of the value of the rule of law, and promoting the harmonious development of all the values of the rule of law in contemporary China, attention must be paid to the excavation of the contemporary value of Chinese traditional legal culture, and understanding and grasping the ‘traditional legal culture that matches the modern value in the dynamic self-renewal.’ Based on this, the inheritance of the elements of cultural concepts and behavioral pattern in traditional legal culture determines the composite orientation of modern legal culture.

Secondly, as far as inheriting association of legal culture exchanges is concerned, through the horizontal comparison of the legal and cultural exchanges between China and Japan, it is concluded that ‘legal culture exchanges are of great significance to the development of a country’s legal culture, especially when the existing legal culture of the country falls into a backward predicament, the targeted selection and dissolution of advanced foreign legal culture can directly bring new vitality to the national legal culture. The social and historical status of a country’s legal culture is inextricably linked with its overall national situation.’ ‘The exchange of legal culture is ostensibly a flow between different legal cultures, but in reality it is a more complex systemic response. It involves the exchange of the two sides, especially the input side’s overall consideration of information transmission, political needs, social development, war victory and defeat, international competition and national dignity, as well as the advantages and disadvantages of the law. It is a part of the strategy of a nation and a country from survival to self-reliance.’ This kind of view regards drawing lessons from foreign excellent legal culture as an important symbol of the vitality of the national legal culture, and emphasizes the synchronous relationship between the legal culture and the rise and fall of the national movement. The exploration of the elements of the hidden legal psychology, legal consciousness and behavioral pattern in the traditional legal culture should be strengthened, so as to directly face the inevitable impact and influence of the outstanding legal culture of the outside world, and highlight the integration of the socialist legal culture with Chinese characteristics. 

Finally, as far as inheriting association of causality in legal culture is concerned, backtracking and exploring the causal relationship between the formation of law and the legal culture, it can be seen that the establishment of traditional legal culture in various countries is inextricably linked with the changes of natural history, religious and humanistic factors of the country and the nation. To some extent, the objectivity of this kind of causal relationship often affects the scientific construction and effective expression of the legal culture. ‘By criticizing positivism and irrationalism, starting with the construction of the concept of ideal type, Weber painstakingly developed a set of logic of concrete causal interpretation, trying to lay a methodological foundation for social and cultural science.’ Then more attention should be paid to backtrack the influence factors of the formation of law on the change of legal culture. Only the legal culture which has certain causal connection with the merging achievements of the times can be summarized and inherited. Based on this, ‘religion or ethics endow the cold law with wisdom and significance, and make the law really become the design of order that pays attention to social life and coexist warmth and violence.’ However, there is a certain degree of common understanding in the construction of the rule of legal order in the Chinese traditional ethical and legal culture and western religious and cultural perspectives, that is, to explore the inheritance essentials from the corresponding background of social relations and the logic of causal interpretation of social life. In fact, ‘moving from tradition to modernity is the inherent historical logic of any legal culture. To realize the modernization of China’s rule of law, we need to prudently face the traditional legal culture we are standing on, find the part that can form an overlapping consensus with the current legal system, establish a meaningful connection, and cultivate modern factors on this basis, and gradually shape modern legal culture.’ 

V. THE VIEW OF GUIDANCE IN PRACTICE: DEVELOPMENT ORIENTATION OF THE VIEW OF SOCIALIST LEGAL CULTURE WITH CHINESE CHARACTERISTICS

View of guidance in practice aims at giving full play to the value-guiding role of the view of socialist legal culture with Chinese characteristics to the practice of rule by law, clarifying the elements of ‘value basis’ and ‘contemporary value’ of the legal culture involved, trying to face the social reality of ‘great difference and uncertainty’ in order to complete the guidance in the proper direction, so as to explore the necessary feedback path for the progress and renewal of this kind of legal culture concept in the process of inspection and practice. 

A. Value Elements of Legal Culture

‘As a kind of criterion for evaluating various conflicting and overlapping interests,’ value elements often restrict the development direction of legal culture. The orientation of value element of legal culture also has two sides: ‘It can take positive value as orientation, fully safeguard democracy, freedom, equality, human rights, justice and constitutionalism, ensure the realization of people’s well-being, but also can rely on negative value, turn law into a tool to promote autocracy, rule of man, safeguard privileges and private system, and even become a means to implement fascist dictatorship.’ Efforts can be made to clarify the traditional and modern value elements, positive and negative value elements, and dominant and secondary value elements of legal culture from the perspective of conflict of value elements between Chinese and western legal culture, and guide rational value objectives, and rationally select and position the development orientation of socialist legal culture with Chinese characteristics.

Firstly, as far as value elements contained in the traditional Chinese social structure and civilization characteristics are concerned, the ultimate goal and dominant value element of Chinese traditional legal culture should be ‘to pursue a harmonious state without litigation through the control of society.’ This kind of harmony element is often influenced by the corresponding socio-economic model, and ‘the legal culture based on the traditional natural economy of China is the value orientation of non-litigation.’ ‘The world outlook of harmony with natural law, legal outlook of law being punishment, social structure of family and country as a whole, political thought of one-sided pursuit of order and stability, and reaction of judicial corruption’ are all the reasons for the formation of non-litigation thought.

Non-litigation is the legal expression of the ideal state of pursuit of harmony and great unity in Chinese traditional culture, ‘the pursuit of order and stability is always the intrinsic life and one of the basic values of law. The value orientation of Chinese traditional legal culture is non-litigation, which highlights its priority and overall pursuit of this mission and value.’ ‘The non-litigation solution is more suitable to the reality of traditional Chinese society, and easy to be accepted by the psychology of traditional Chinese people, resulting in a very developed mediation system in ancient Chinese legal culture. However, the traditional concept of non-litigation tends to lead to the weakening of citizens’ consciousness of rights, the difficult development of the legal system, the decline of law, the non-specialization of the legal profession, and the distortion of legal concepts, which, to a certain extent, hinders the deep-seated advancement of the modernization of China’s legal culture. It is necessary to explore the ways and methods of modern transformation of the non-litigation tradition, that is, to require ‘the transformation of Chinese traditional legal culture in the construction of modern rule of law be carefully operated, making it to be limited, transformed and discarded to a certain extent,’ fully explore the reasonable core of the traditional concept of non-litigation, pay attention to cultivating citizens’ consciousness of rights, and emphasize comprehensive social governance and overall balance in order to effectively alleviate various social contradictions.

Secondly, as far as the value elements contained in the western social structure and the characteristics of civilization are concerned, ‘in the West, the pursuit of justice constitutes the main clue of western jurisprudence and legal development. Justice is goodness and fairness, while law is the embodiment of justice.’ Justice has a high status and value in western legal culture, and it can be the spiritual driving force to promote the progress of human civilization through law. Western legal culture can also be said to be based on the ‘commodity economy, derived from the legal culture of freedom and justice as the highest value’, and ‘law embodies and pursues goodness, freedom, justness, equality, fairness and order, that is justice.’ The core of justice should be freedom, but any freedom is at risk of being abused, so freedom must be restricted. ‘The only thing that can impose restrictions is the law, because laws with social, compulsory and universal will are the best guarantee to coordinate people’s freedom.’ The law should take rights and obligations as its content, adjust people’s behavior and relationship to make just practice feasible and realistic. Of course, ‘justice not only keeps the western legal culture alive, but also promotes the establishment and development of democratic politics. Justice as the value orientation of law is in line with the progress of human civilization, but in reality, justice always inevitably has the limitations of class, race, wealth, nation, times and so on. In the modern capitalist world, there are objective situations such as double standards of international relations, the deviation of institution from reality, the serious opposition between poverty and wealth, confirming the helplessness of justice and law.’ Therefore, efforts should be made to try to reveal the dominant trend of the transformation of China’s modern legal culture in the value conflicts generated by the Chinese and western legal culture views, select the favorable elements of stimulating legal vitality, promoting democratic politics, emphasizing justice and equality in the value orientation of western legal culture, and renew and improve the socialist legal culture with Chinese characteristics guided by socialist core values. 

Finally, as far as the value elements represented by the socialist core values are concerned, as ‘the soul and direct expression of socialist legal culture,’ the socialist core values are the systematic integration of the value elements that fit the goal of rule of law in contemporary China on the premise of absorbing the reasonable core of the value elements of Chinese traditional legal culture and drawing lessons from the universal value elements of western legal culture. The value elements of China’s socialist legal culture should be based on ‘promoting the full development of the market economy, promoting regional balance and fairness among members of society, and cultivating citizens’ rational consciousness with rights, duties and responsibilities as the core, and promoting political civilization with democracy and rule of law as the core.’ Based on this, ‘among the twelve values of socialist core values, democracy, freedom, equality, justice, rule of law and integrity are directly related to the construction of legal culture.’ Therefore, in the actual operation process, how the value elements of socialist legal culture and socialist core values play a specific role is a practical problem to be solved urgently in the practice of legal culture. It is necessary to strengthen the propaganda of socialist core values, gradually form citizens’ necessary legal thinking and identity in the practice of rule of law, and thoroughly reform citizens’ legal cognitive level and legal action ability, so as to provide the necessary direction for the practice of socialist legal culture with Chinese characteristics.

B. Guidance and Feedback Path of Legal Culture

As an important part of national culture, the legal culture has an irreplaceable leading role in the construction of the national legal system. It is not only a process of critical inheritance, integration and reference, but also a process of continuous renewal and development, which needs to keep pace with the times, so that, based on the value elements of legal culture to guide social reality, necessary feedback on this kind of legal culture in the process of inspection and practice can be achieved. ‘In law, practicality will always be taken into account, but this consideration is not the primary purpose of the law.’ Efforts should be made to try to clarify the connotation of the modernization of legal culture, the comparison of globalization and the empirical orientation, and explore the guidance and feedback path of legalization and diversification of legal culture.

Firstly, as far as the connotation of the modernization of legal culture is concerned, in the process of the modernization of legal culture, the value orientations of ‘rule of man, compulsion, autocracy, privileges, obligations, unity, dependence, centralization of power, heteronomy, society and closure gradually decline, while the value orientations of rule of law, freedom, democracy, equality, rights, pluralism, independence, decentralization, self-discipline, individuality and openness are becoming more and more dominant. This transformation is accompanied by the replacement of the traditional rule-of-man system by the modern rule-of-law system.’ It is relatively narrow to regard the modernization of legal culture only as ‘a process of realizing the rationalization of legal life, completely denying legal tradition, absorbing all beneficial legal experience and renewing legal structure.’ It often neglects the organic inheritance of the rational core of traditional legal culture, and its connotation should be clarified more extensively from the perspective of the overall structure of the modernization of legal culture, ‘including three vertical levels, nine horizontal levels, two time-series synchronization and coordinated renewal and development, especially the positive and reasonable sublation of tradition, and not limited to the transformation and adjustment of certain legal and cultural elements.’ In fact, ‘the traditional legal culture is not only the historical and logical starting point of legal modernization, but also the cultural resources of legal modernization,’ and ‘focus should be placed on the material, institutional, cultural and social reality of China, so as to fundamentally solve the problem of the modernization of legal culture in China.’ Therefore, the complex process of absorbing, inheriting, balancing, coordinating, innovating and developing the modernization of legal culture should be highlighted. The modernization of legal culture ‘at the institutional level means that the legal system of a country fully reflects the common requirements of socialization of production and marketization of economy in modern society, and can give extensive and effective legal regulation to various relations within modern society, thus achieving system support and improvement of content of the legal system itself. At the conceptual level, it embodies the innovative spirit promoted by external forces. The process of urbanization promotes and fosters a mature civil society, making it the foundation of modern rule of law. On the value level, it completely breaks the inherent values and systems in the deep structure of the original culture, replaces it by the understanding and identification of the evolution of legal culture to meet the needs of the times.’ Therefore, the modernization of legal culture should be ‘a process of synchronous modernization of legal ideology, legal system and organizational structure. Any internal disharmony will lead to the abortion of the modernization of legal culture.’ Based on this, the corresponding evaluation indicators of legal culture modernization should also be clarified. In addition to the five objective indicators of ‘truly and comprehensively realizing the supremacy of law, legal independence, legal unification, legal intervention and legal participation’, it should also include eleven decomposable indicators of ‘the integrity of legal system, the thoroughness of legal norms, the rigor of legal operation, the scientificity of legal thought, the rationality of legal education, the universality of legal dissemination, as well as the legal mentality and legal identity.’ The scientific and orderly evaluation of the process of legal culture modernization is also an essential step to reveal the inner spirit and basic principles of socialist rule of law. It is necessary to explore a gradual integration approach between exogenous reference and endogenous transformation in order to achieve the balanced and coordinated development of legal culture modernization.

Secondly, as far as the globalization of the modernization of legal culture is concerned, ‘under the impetus of globalization, the exchange of legal culture between China and the West is carried out at all levels, not only through academic research on law and legal education, but also through mutual reference and absorption of legal norms and systems, as well as extensive exchanges, references and cooperation in the field of legal affairs.’ With the continuous expansion and deepening of global legal culture exchanges, ‘the re-identification of legal culture becomes inevitable. This kind of identification is to sort out the value basis and operation state governing the legal practice activities in the past.’ Thus, the modernization of the socialist legal culture with Chinese characteristics should also be placed under the background of globalization, and the comparative reference of the international legal culture should be strengthened. ‘From a theoretical point of view, legal culture is generated from the production and living practice of human beings in a specific time and space, with distinct regional differences and national characteristics. But in fact, the legal culture itself is not a completely closed system, but has the characteristics of openness, commonality and compatibility. This determines that different legal cultures can exchange, communicate and adjust with each other.’ Based on this, ‘the impact of western legal culture can be comprehensively examined under the macro background of the internal contradictions and evolution of the legal system in modern Chinese society to reveal the dominant trend of the transformation and modernization of legal culture in modern China, so as to rebuild the analytical framework of the changes of legal culture in modern China.’ Of course, ‘the modernization of western legal culture is not an individual phenomenon of a country or a region, but a worldwide trend and a worldwide historical process.’ The necessary legal transplantation should become an important means of the modernization of legal culture. However, the inheritance and transformation of local legal culture should also be accompanied by the ‘transformation and integration of public law culture and private law culture’ and the ‘integration of diversification, integration, socialization, practicality and scientific development’, and be listed as the basic support for promoting globalization comparison and transplantation. In the end, the positive interaction between legal culture and market economy, democratic politics and civil society can be achieved through ‘further deepening reform and opening up, establishing socialist market economy and promoting political system reform, realizing economic marketization and political democratization, establishing a civil society compatible with market economy and democratic politics; correctly handling the relationship between inheriting traditional legal culture and transplanting western legal culture, promoting the modernization of legal culture; fair legislation, strict law enforcement, impartial administration of justice, establishing legal beliefs; and strengthening legal education and law popularization.’ In the process of globalization, we should grasp the overall evolution trend and law of ‘contemporary Chinese and western legal culture, from communication to conflict, from conflict to resolution through adjustment, and then to integration through resolution,’ promote the legal culture exchanges between China and the West to enter a ‘new stage of reciprocity, complementarity and communication’, focus on the current objective social reality of material, system and culture, and gradually clarify the specific development goals of the view of socialist legal and culture with Chinese characteristics. 

Finally, as far as the empirical orientation of legal culture modernization is concerned, the return to the study of traditional legal culture should be the cornerstone of its empirical orientation. ‘Excellent traditional legal culture helps to avoid the distorted development of the value of the rule of law in contemporary China, provides a good social soil for the recognition and acceptance of the value of the rule of law, and provides a source of water and root of wood for the realization of the value of the rule of law in contemporary China.’ The traditional moral education, collective standard and the combination of various laws can promote the current social comprehensive governance, reform of property rights system and the interaction and coherence of ‘internationalization of domestic law and domesticization of international law’ under the background of globalization. The returning to the study of traditional legal culture in an innovative and sublated way can provide the necessary ideological soil for establishing the view of socialist legal culture with Chinese characteristics and strengthening the public identity of the rule of law on the basis of carrying forward the excellent national legal tradition and the rule of law experience. ‘One of the basic principles implemented in China’s legal practice is to absorb all the advanced cultures of human beings, and pursuit of civilization and advancement is still the most fundamental reason and goal of cultural exchange between China and the West.’ In the process of modernization of legal culture, the beneficial experience of foreign countries may be used for reference, so as to provide a possible boost to achieve the goal of modernization of legal culture. In addition, the socialist legal culture with Chinese characteristics, as a ‘legal culture in a social form of socialist society and embodying socialist ideology,’ deconstructs the legal concepts, legal systems, guiding ideology of legal construction and other elements of legal culture with the method of ‘empirical analysis’. In addition to being based on the traditional legal culture, the overall status quo of the socialist legal culture in China should be clarified, that is, ‘it has obvious Chinese characteristics and diversified expression of legal culture, the explicit legal culture and implicit legal culture are not coordinated enough, and traditional legal culture has a huge impact.’ Then, under the guidance of rational and scientific humanism and the spirit of seeking truth from facts, the development orientation of the view of socialist legal culture with Chinese characteristics should be sorted out to ‘establish the fundamental guiding position of Marxism in guiding ideology, to establish the legal culture of taking rights seriously at the conceptual level, to establish the legal culture of power restriction at the institutional level, and to establish the law of procedural justice at the operational level.’

VI. CONCLUSION

In 70 years since the founding of the People’s Republic of China, the study of the ontology and application of legal culture has continued to deepen. Studies had been conducted to explore the core meaning of the composite connotation, structural elements, typification comparison, and guidance in practice, preliminarily interpreted the multi-dimensional, diversified and multi-level characteristics of the socialist legal culture with Chinese characteristics. The established consensus of the institutionalized research on this kind of view of legal culture is that it should be based on the legal culture, under the representation of both internal and external structural elements, and be related to the interactive process of legal system, so as to achieve the individualized and diversified construction of legal culture. Based on this, the future research focus of this kind of view of legal culture should be placed more on the dimension of ‘law in concept’ to explore its positive effect as a communication medium between ‘law in reality’ and ‘law in text’; clarify the gist and law of internal change of various categories, and then clarify the logical starting point, carrier form and cognitive clue of the view of socialist legal culture with Chinese characteristics, in order to achieve a diversified and multi-dimensional modern legal culture. How to realize the scientific and systematic cultivation of the view of socialist legal culture with Chinese characteristics is the key issue in the study of such legal culture. Study of the scale effect of the input of cultivation modes and methods should be gradually shifted to the study of the quality and benefit of the output of training content and results based on empirical analysis so as to provide more scientific and feasible guidance of legal spirit paradigm for perfecting the theory of socialist rule of law with Chinese characteristics and promoting the localized practice of rule of law in an all-round way.