On The Development Of The Commercial Customary Law Of The Commercial Community In The Area Of Jiangnan Since Ming And Qing Dynasty

It is ,from the perspective of legal sociology, insisted on that the conception of Law in the form of analytical method is applied in this dissertation. The law, in the viewpoint of positivist jurisprudent, is regarded as the norms which are accepted and created by the state and the other that is not created by the state remains the social norms and can not be called as "Law". The traditional conception of law, nowadays, is challenged because such a conception of law can not explain the phenomena of the customary law in pre-modern society, for examples, the commercial customary law accepted in the group of the merchants and artisans in Ming and Qing Dynasty in China. Additionally, there are a lot of such-so-called social norms function in very wide field of current daily life around the world, taking ADR as an instance. So the author introduces the method of legal sociology to legal field in order to discuss some legal questions in different form and make some reflections of the state law, rather than decomposition thereof.With the viewpoint of legal sociology, the law is not the rules, but also the "inside order"of a group of people, so the commercial customary law is the spontaneous orders in the interaction of the merchants in the commercial community. The research the customary law of the commercial community will, applying more materials from the historical cases, pay more attentions to the developments of the commercial customary law, such as its formative stages, the operation and function thereof, than the static contents which have already been well described. The development of the customary law of the commercial community in China will be retrospected from the traditional Huiguan and Gongsuo in Ming and Qing Dynasty to the chamber of commerce in the modem time in the area of Jiangnan.There is a comparison between the traditional Huiguan and Gongsuo and the modern chamber of commerce and its customary law as well from three points: the modality of the system of the commercial community, the operation of the customary law of the commercial community and the value and concept behind it. It is dedicated to find out how the modern and the tradition interact each other in the history of China, specially the transition era, and not to put forward a further proof to the necessary conclusion that the development from the tradition to the modern is from the status to the contract.The author tries to depict three trends in the development of the customary law of the commercial community. Firstly , there is an evolvement from the system of Registration of public property of Huiguan and Gongsuo in Qing Dynasty to the system of the independent legal juridical person in the transitional era. Secondly, the operation of the commercial customary law become more positive, with the traditional norm of commercial customary law less positive and a system of rules appearing. Thirdly, with the value and concept behinds also changing, the traditional method of moralization of sensibility gives place to the reasonable ideas of contract. In old days, the businessmen are expected to solve the disputes occurred among them firstly by themselves through intermediation, which was often in end of fining and dining, and the government was seldom asked to interfere only when the case became a crime and someone would be punished. Additionally, there is an attractive phenomenon in the belief of the business gods in the Huiguan and Gongsuo, which was the guild hall for rite and party. For instance, the businessmen spent some unchangeable time together very year and held some rite before the gods and also made punishment in form of invitation of the dance before the gods. The survey and analysis is made to find and explain the meaning of life of the merchants behind those collective actions. With the coming of idea of Scientism and democratism, all of these are regarded as superstitions and abolished from the daily life of the merchants and artisans. In the modern time, business people entered into a constitution of the chamber out of one's own accord and accepted the restrictions that is expressed in the constitution, and could claim their rights also created by the constitution including the rights to select the president and relative persons in the chamber and decide the important affairs.Facing the difficulties and puzzles of the Rule of Law, the author also means to question closely the idea of order and the arrangement of order in China. After the research made to the customary law of the commercial community, it occurs to the author that in the traditional time the commercial customary law reflected the idea of ethic of Confucian in harmony with the ancient idea of order which took the world as one integrated mass. Enter into the modem time, China was invaded by the west and gradually influenced by the west culture that is very different from Chinese traditional culture. In comparison, the west is good at analysis and makes the ultimate truth as its motives and Chinese is intent to lead a life in a harmonious world. Maybe two cultures can find a way to perfect each other one day and, nowadays, there are some trials in Chinese practice of the Law of Rule, for examples, the actions in Chamber of commerce in Wenzhou. This article can be regarded as such a start to discuss such a communication and interchange of legal culture between the west and the east.