Legal Consciousness Theory

Contemporary China is in a period of great historical change. The nature of this great historical change is a historical leap of the society's whole system from the traditional one to a modern one and the course of modernization. From the perspective of legal system modernization, on the one hand, the course of modernization is advancing uninterruptedly; yet on the other hand, the legal system modernization is facing many challenges and puzzles, among which one of the most prominent ones is the low effectuation effectiveness of laws and the difficulty to form the authority of laws. The low authority of laws can be attributed to many reasons, among which an important factor is the issue of citizens'low level of modern legal consciousness. Therefore, the cultivation of citizens'modern legal senses and the propulsion of the modernization of citizens'legal consciousness become an important and indispensable part of the implementation of the strategy of"running the state according to laws"and a fundamental project in the construction of the socialist legal state.The dissertation consists of the Introduction and ten chapters in three sections. The introduction mainly puts forward the issue, discusses the research methods, the theoretical objectives and structures of the dissertation. Section 1 (Chapters 1-4) [expounds] basic theory of legal consciousness. Section 2 (Chapters 5-8) [discusses] the theory of modernization of legal consciousness. Section 3 (Chapters 9-10) [deliberates] China's contemporary study on legal consciousness.I Basic Theory of Legal ConsciousnessIn the section"Basic Theory of Legal Consciousness", the concept, structure, functions and social basis of legal consciousness are analyzed.Concept of legal consciousness: legal consciousness is a special kind of social consciousness system, the subjective means for social subjects to grasp the society's legal phenomena and an organic complex consisting of various psychological elements such as people's reason, feeling, will and belief as regards laws. To be more specific, legal consciousness has the following connotations: first, legal consciousness belongs to the category of social consciousness, and is a special kind of social consciousness system and the subjective means for social subjects to grasp the society's legal phenomena. Second, legal consciousness has the feature of being diverse yet unified. Third, the content of legal consciousness covers many aspects. Fourth, the content of legal consciousness is subject to the influence of many social cultural and legal factors, among which the most fundamental and decisive factor is the society's material living conditions.Structure of legal consciousness: legal consciousness is a systematic structure formed by its external environment and internal elements, among which the society's cultural system and legal system serve as the environment or situation for its existence, operation and development, and various components of legal consciousness and their interrelationship are its internal structure. The dissertation approaches the structure of legal consciousness mainly from three aspects: first, on the aspect of the relationship between legal consciousness and social legal system, legal consciousness is the prerequisite to the changing of customs into common law. The legal consciousness of the legislators is the indispensable subjective psychological foundation for written laws. Therefore, legal consciousness serves as the intermediary and the bridge for laws to link economic base and legal system. Second, on the aspect of human beings'means of grasping society's legal phenomena, legal consciousness includes legal knowledge, legal ideal, legal feeling, legal will, legal evaluation and legal belief. Third, the vertical structure of legal consciousness mainly consists of three levels, namely legal psychology, legal senses and legal ideology. They form the structure of legal consciousness from the deep level to the surface level, and at the same time, embody the course of the gradual formalization, stabilization and theorization of legal consciousness.Function of legal consciousness: function of legal consciousness refers to the function, action and influence of legal consciousness on the whole legal cultural system and the social cultural system. It involves the infiltration and integration forces of legal consciousness on the social legal system and the society's whole cultural system as the means for social subjects to grasp the society's legal phenomena. Function of legal consciousness refers to the function, action and influence of legal consciousness on the whole legal cultural system and the social cultural system. The dissertation analyzes its function from two aspects: as regards its legal function, it has the function of forming and operating legal system. On the aspect of legal system forming: legal consciousness is the subjective value base and driving force mechanism of the forming of a society's legal system and the direct basis for legislation. It sets the legislative objectives or legal ideals and has the function of evaluating, correcting and"filling in the gaps of"legislation. The legal system operating function of legal consciousness mainly refers to its function and significance in law observance and law application. It exercises its function through the law-abiding and law using acts of citizens', interpreting laws to their applicable people, legal reasoning and other means. As regards the social cultural function of legal consciousness, it refers to the influence and action of social consciousness in the construction of socialist material civilization, system civilization and a civilization with a high cultural and ideological level. It mainly depends on the position of legal consciousness in the structure of the social cultural system, its interdependent, inter-restraining and interactive structure-function relations with other social cultural subsystems. Therefore, the study of the social cultural function of legal consciousness should include the structure-function relations between social consciousness and other social cultural construction. The dissertation mainly examines the economic function, the political function and the ethical function of legal consciousness.Social base of legal consciousness: legal consciousness is the reflection of the society's legal right relation and legal phenomena in people's minds. It is formed and developed by people during the long-term production and living course. The opinions and attitudes of legal consciousness regarding a society's legal right relation and legal phenomena are the products of a certain society's economic basis, political basis and cultural conditions. Therefore, the study of legal consciousness should scientifically grasp and profoundly reveal the deep social cultural basis ensuring its emergence, existence and development, systematically analyze and decode the inner connecting relation between legal consciousness and the society's economy, politics and cultural ideas and make a historical-materialistic interpretation of legal consciousness. And then the social economic base, the social political base and the social cultural base of legal consciousness are elucidated.II Theory of Modernization of Legal ConsciousnessTheory of modernization of legal consciousness belongs to the category of the development theory of legal consciousness. It strives to grasp the issue of the modernization of legal consciousness as a special stage in the development of legal consciousness, probes into the internal theoretical logic of the modernization of legal consciousness and makes a rational and thorough exploration of basic theoretical issues such as the nature, objective, standard, driving force mechanism, mode or pattern of the development of legal consciousness since modern times on the basis of general theoretical analysis of legal consciousness. And then it establishes the theoretical scheme of modernization of legal consciousness and provides a conceptual tool system and a theoretical analysis framework for the positive study of modernization of legal consciousness.1. Concept of modernization of legal consciousness: modernization of legal consciousness is an important aspect of modernization of the social system and an important component of modernization of the social legal cultural system. It also belongs to the category of modernization of human beings. It is a special kind of development course of social subjects'subjective legal consciousness such as cognition, feeling, attitude, will and belief. It is a creative and historical transformation from legal consciousness of the traditional society to legal consciousness of the modern society. Its nature is the historical change course from legal consciousness corresponding to the traditional man-ruling social legal system to legal consciousness of the modern law-ruling social legal system. It has five detailed connotations: first, the starting point of modernization of legal consciousness is the legal consciousness of social subjects in ancient societies, or traditional legal consciousness. Second, it is a special course of the development of legal consciousness. Its objective is to form modern legal consciousness, that is legal consciousness system of subjects in modern society corresponding to the base of modern market economy and democratic politics. Third, modernization of legal consciousness is a ceaseless historical course of leaping from the legal consciousness of subjects in a traditional man-ruling society to legal consciousness of modern law-ruling society. Fourth, modernization of legal consciousness is the creative transforming course of traditional legal senses. Thus legal consciousness in China and foreign cultural ideas should be properly treated. Fifth, modernization of legal consciousness belongs to the category of modernization of human beings and is a vital component of modernization of human beings. Modernization of legal consciousness includes modernization of legal consciousness regarding legal forms and modernization of ideas regarding the spiritual value system of laws.2. Standard of modernization of legal consciousness: standard of modernization of legal consciousness is the objective system and the yardstick of modernization of legal consciousness. It is concerned with what modern legal consciousness should be like. As modernization of legal consciousness includes two elements, namely modernization of legal form ideas and modernization of legal values, the standard of modernization of legal consciousness mainly consists of the standard of legal form ideas and the standard of legal values. Besides, it is contended in the dissertation that legal belief is the comprehensive yardstick for evaluation of modernization of legal consciousness. The evaluation of the form ideas of modernization of legal consciousness is the assessment of the subjective grasp degree of the requirement of modernization of legal forms and its results by social subjects. It is embodied in the subjective psychological evaluation of legal forms such as modern legal norm, techniques of laws, material conditions of laws and legal order. It mainly includes four concrete yardsticks: first, the standard of the formal neatness concept of legal norm; second, the standard of the complete and harmonious concept of legal system; third, the standard of the concept of legal procedures; fourth, the standard of the concept of legal effectiveness. Evaluation of the modernization level of legal consciousness covers not only the evaluation of the modernization level of legal form ideas but also the evaluation of legal values. The value evaluation of legal consciousness is to judge and assess the degree of legal consciousness'grasp of modern laws'spirit in the light of the internal value requirement of modern legal consciousness by modern market economy and democratic politics. The basic value objectives, value orientation and the internal evaluation yardstick of modernization of legal values are mainly incarnated in the following four aspects: first, the standard of integration of free pursuit with rational self-discipline; second, the standard of integration of individual right assertion with safeguard of social interests; third, the standard of integration of equal legal entity with calm acceptance of differences; fourth, the standard of integration of laws'maintenance of legal rights'authority with laws'prevention and restraint of abuse of right.3. Driving force in modernization of legal consciousness: driving force in modernization of legal consciousness refers to the factors resulting in the change of legal consciousness and internal factors hindering legal consciousness transformation inside the social cultural system and legal system. According to the driving force theory of legal consciousness, the organic integration of driving forces of modernization of legal consciousness with the obstacle factors and their mutual actions form the driving force mechanism of modernization force. It is contended in the dissertation that the driving forces in modernization of legal consciousness mainly includes: first, the tremendous driving force from the commodity market economy; second, the internal requirements of modern democratic politics; third, the propelling action of modern ideological trends of democratization of politics on modernization of legal consciousness; fourth, as for latecomers in modernization, shock and infiltration of advanced foreign legal culture on the state's traditional legal culture; fifth, influence of positive factors of traditional legal culture on modernization of legal consciousness; sixth, the propelling action of social subjects on modernization of legal consciousness. The factors hindering modernization of legal consciousness mainly include: effect of traditional social system in the process of modernization, citizens'one-sided understanding of the legal right relation in modern market economy, social subjects'sentimental reflection of foreign modern and contemporary legal cultures and legal ideas, contradictions and low effectiveness in actual law enforcement. Therefore, in the process of modernization of legal consciousness, changing factors hindering modernization into positive driving force is a vital mission of leaders and operators of modernization of legal consciousness, the prerequisite to the realization of modernization of legal consciousness as well as an indispensable part in the study of the objectives of the driving force mechanism of modernization of legal consciousness. Yet in order to change factors hindering modernization of legal consciousness into positive driving force of modernization of legal consciousness, it is necessary to energetically develop modern market economy and democratic politics, make creative transition of traditional legal cultural and legal consciousness, make a rational analysis of foreign legal culture, thoroughly study and rationally grasp the internal legal right relation of modern market economy and democratic politics, vigorously carry out the construction of socialist legal system and perfect various links and aspects of law operation.4. As every state has varying historical and cultural backgrounds, driving force mechanism in its way towards modernization and value selection in dealing with and settling various complex contradictory relations in the development course from a traditional society to a modern society, the modernization of every state displays unique features of its own on many aspects such as its character, speed, scale, development mechanism and historical path, and forms dissimilar social development patterns. And scientific analysis and rational grasp of such peculiarity in the course of modernization is the prerequisite and basis of profound and thorough understanding of modernization of the state. It is contended in the dissertation that in order to grasp the mode of a state's modernization of legal consciousness, several pairs of basic relation should be abstracted from various complex relations in the course of modernization. And the mode of the state's modernization of legal consciousness can be set by the value selection incarnated in the state's treatment, coordination and integration of these pairs of relation. Therefore the division of the modes of modernization of legal consciousness can be approached from different angles. In view of it, we can approach the mode types of modernization of legal consciousness from the following angles: first, from the angle of the source of driving force of modernization of legal consciousness, modernization of legal consciousness can be summed up into three types, the internal-originating type, the external-originating type and the mixed type. Second, from the angle of transition means from the traditional to the modern, modernization of legal consciousness can be divided into three types, namely the traditional variation type, the type of fracture of the traditional with the modern, and the restructuring type of legal consciousness system. Third, from the angle of legal value orientation, modernization of legal consciousness can be divided into three patterns, namely the legal consciousness pattern with individual rights as the standard, the legal consciousness pattern with the entire social-state interests as the standard and the legal consciousness pattern coordinating and integrating individual rights with the entire social-state interests. Fourth, from the relation between the modernization of legal values and the modernization of legal form ideas, modes of modernization of legal consciousness can be divided into three types, the form rational type, the value rational type and the type of equal stress on the development of form rationality and value rationality. The dissertation mainly analyzes the above six modes divided in the light of the first two angles in details.III China's Contemporary Study on Legal ConsciousnessAs regards China's contemporary legal conscientiousness, the dissertation contends that it has the features of society's change and transition period. On the one hand, the development of modern market economy and democratic politics have laid a solid foundation for the formation and development of modern legal consciousness of the Chinese people and greatly pushed forward the modernization course of legal consciousness. On the other hand, the contradictory nature of the period of social structure transform makes legal consciousness display diverse and contradictory features of the transitive and transforming period in the course of modernization. And the citizen's modern legal consciousness is still immature on many aspects. And there still exists bias on such aspects as the citizen's knowledge of the nature and functions of laws, his attitude towards laws and his beliefs in law. First, on the aspect of legal knowledge or cognition of laws, the citizen's cognition of laws has gradually become rationalized. And most people begin to have a relatively correct cognition of laws. Yet there still exist misunderstandings about laws. Second, the area development is uneven. Third, the citizen's right consciousness has improved markedly yet such traditional ideas as non-action are still exerting a certain influence. Fourth, generally speaking, citizens trust laws; yet they also express dissatisfaction over the status quo of law enforcement. China's contemporary legal consciousness has the following basic contradictions: first, the contradiction between citizens'modern legal consciousness demanded by the internal legal right relation of modern market economy and citizens'one-sided and fragmentary legal consciousness; second, the contradiction between modern legal ideas and traditional legal consciousness; third, the contradiction between the superiority of laws and insufficient trust in laws.In contemporary China, legal consciousness reflecting the internal legal right relation of modern market economy and democratic politics embodies the development direction of modernization of legal consciousness in contemporary China. It is of key importance to the modernization development and smooth operation of China's legal systems, forms the subjective value basis of modern legal systems and has a vital function of propelling the legal system modernization in contemporary China. This propelling function is mainly embodied in the following aspects. First, the legal thoughts of jurists in contemporary China have the important function of propelling the forming and operation of China's legal system. Second, transforming of legal ideas in contemporary China, especially the transform in legislators'legal conscientiousness, greatly pushes forward the modernization of the forming of China's modern legal system and legislation. Third, legal consciousness in contemporary China, especially the legal consciousness of law operators, has the function of pushing forward legal application. Fourth, modern legal consciousness and ideas of contemporary China's citizens are the subjective consciousness base for social subjects'observance of laws of their own free wills. Yet on the other hand, the contradictory nature of subjects'legal consciousness and internal conflicts in the present transforming period of China's society also greatly restrain the smooth operation of China's modern legal system and affect the realization of high effectiveness of laws. Such restraint and hindering function is mainly incarnated in the following three aspects: first, it restrains the quality of legislation; second, it affects and restrains citizens'trust in laws and observance of laws; third, it affects the application of laws.Based on the above analysis, the dissertation contends that, in order to realize the objective of"running the state according to laws and establishing a socialist legal state"and promote the overall realization of China's legal system modernization, it is highly necessary to vigorously cultivate citizens'modern legal consciousness and to realize the modernization of legal consciousness of social subjects. Therefore, first of all, it is highly necessary to carry out the construction of socialist market economy and democratic politics vigorously, laying a solid social economic and political foundation for the formation and development of modern legal consciousness. Next it is necessary to actively push forward the socialist political and legal reforms, establish a complete socialist legal system, improve the effectuation effectiveness of laws in actual life, providing necessary legal system conditions for the formation and development of citizens'modern legal consciousness. Then it is necessary to carry out systematic legal education and law research, cultivate citizens'overall modern legal consciousness and legal ideas, reveal the internal legal right relation of socialist market economy and democratic politics as well as the legal spirit of the times in order to realize the great innovation in the legal ideas of the Chinese people. Meanwhile the dissertation suggests propelling the modernization course of China's citizens'legal consciousness from five aspects, that is establishing the principle and the system of superiority of laws, making good laws, ensuring equitable justice, strengthening the construction of legal ceremonies and legal education.