On The Legal Modernity

This paper starts from the meaning of modern law and raises the question of the legal modernity. Through vertically combing the ideas of the legal modernity, starting from the fracture of the knowledge tradition, the author inspects the legal modernity as a different form from traditional knowledge is how to self-confirm, self-display and show its real critical edge. Further, through inspecting the theory core of the law modernity: rationality, this paper reveals the inherent tensions of the legal modernity and analyses the possible causes which have led to the weakening of the critical power. Based on this, the author believes it is necessary to rethink and criticize the legal modernity.The full text of this article includes three parts, the introduction, the body and the conclusion. The part of the body is composed by the six parts, that is, "the meaning and characteristics of the legal modernity", "the origin of the legal modernity ", "the value foundation of the legal modernity", " the legal modernity and the modernization of the law", "the internal contradictions of the legal modernity ", "the solution of the internal contradictions of the legal modernity".The introduction reveals the modernity in general meaning and the era background of the legal modernity and points out the complexity of the legal modernity. Simultaneously, through reviewing the researching results of Chinese scholars, the author tries to grasp the core of the legal modernity.Through dissertating the meaning and characteristics of the legal modernity, the body reveals the core value of the legal modernity. Further, through combing the history, the author discusses the legitimacy basis of the modern political and law systems. At the same time, the author also points out that the modern law not only proves the outside legitimacy through its inherent rationality, but also gives birth to its own internal contradictions. It is necessary to the idea of the legal modernity to restore its criticism of our social reality through the conversion of rational thinking modes. Starting from the concept of the "modernity", the author inspects the history of modernity from the perspective of etymology in the first part of the body.Subsequently, the author demonstrates three classic ideological of Giddens, Habermas and Foucault to illustrate the complexity of the problem of modernity. The author indicates it is impossible to define "modernity" through giving it a clear conception. Similarly, it is also impossible to give a clear definition of the legal modernity. Only through inspecting the process of the self-evidence and self-display from the history, we can gradually make this issue clearly. Next, starting from an important issue of the legal modernity: the rational interaction between the main body of modern law and the legal texts, the author respectively inspects the process of the self-fashioning of the main body of modern law and the construction of the modern process of legal texts and points out that the "rationality" is the core of the legal modernity. The intrinsic logic rationality endows the modern law with the formal characteristics and influences the theoretical paradigm of modern law.The second part of the body inspects the emergence and development process of the legal modernity from the history. From the beginning of the religious reformation, people have been trying to seek a new legitimate basis for the modern law shaking off the shackling of the theology. The protestant reform has opened the concept of the "individual rationality". People have sought a more solid theoretical basis of knowledge with the rationality for the practice modern society. In the theory of Hobbs, the dominance of God in the law was replaced by the secular authority. His theory upset the systems of classical natural law and created the conditions for the modern legal systems. And the Age of Enlightenment meant that the era of the modern knowledge and the era of the classical myth break. The author selects a few of representative thinkers of the Age of Enlightenment——Descartes, Hume, Kant, Hegelas——to demonstrate the philosophy ideology as the metaphysical basis of a modern law. Descartes established the rationalism tradition to acquire knowledge in modern society. Hume established academic tradition of the empiricism. Kant and Hegel together improved the subjective philosophy dominant the modern ideology. Next, the author explains the concrete content of social contract thinking that is the political foundation of the modern law. As two branch of the thinking of the social contract, thinking of John Locke's social contract was significantly different from the thinking of Rousseau's social contract. The difference represented the different cognition of different social groups on the basis of law legitimacy. Pursuing the certain knowledge makes the theoretical system of positive law replace the theoretical system of natural law and becomes the dominant legal thinking. The author discusses the utilitarian thinking as the ethical basis of the theory of the positive law, analyzes the "separation thesis" and points out the modern ideological elements of the positive law.In the third part of the body, the author discusses the two core value elements of the basis of modern law——rationality and freedom. Through describing the self-display of the two values in the modern law, the author more accurately grasps the structure of the "subjectivity" ideology as the soul of the modern ideology. Through combing the incisive interpretation of Locke, Rousseau, Kant, Hegel, Berlin and other masters to rationality and freedom, the author demonstrates the legitimacy of rationality and freedom as value basis of the legal modernity.In the fourth part of the body, the author differentiates between"the legal modernity"and"the modernization of the law". "The modernization of the law" is a concept in the level of law sociology. It indicates gradual improvement of the society in the system pattern, political structure and legal system from a traditional society into the modern society. "The legal modernity" examines and criticizes modern civilization from the perspective of the legal philosophy. It grasps the essence of modern law from the thinking and behavior and reflects the consciousness and the spirit of "modern" times. Next, the author discusses the criteria of the modernization of the law and hooks up the modern law and social life closely. Further, the author points out that the substance of the legal modernity is to find a legitimate basis for the modern law. In the fifth part of the body, the author reveals the inherent contradictions of the legal modernity. A major source of inherent contradictions of the modern law is an inherent defect of the subjective philosophy. By analyzing the inherent defect of the subjective philosophy, the author points out that "rational" concept ,as the core of the subjective philosophy and the modern thinking, has increasingly become the "instrumental rationality" and led to a series of social consequences such as the missing of the ultimate meaning of human and the alienation of the freedom . It would make the internal mediate mechanism of the modern law increasingly rigid and the inherent criticism gradual powerless.In the sixth part of the body, the author points out that in order to resolve the inherent contradictions of the legal modernity, we must find a conversion of the rational mode. Through "rational communication", Habermas has re-established the basis of the normative for the modern politics and modern law. Under the premise of the completion of the conversion of the rational mode, Habermas criticized two laws' paradigm of the modern Western: that is, the procedural law which would find its legitimacy from its own in the period of the liberal capitalism and the welfare law in the period of the organized developed capitalism. Based on "rational communication", Habermas constructed the legal paradigm of the proceduralist, in order to resolve the inherent conflict of the legal modernity.In the conclusion, the author points out that despite of the existence of inherent contradictions in the modern legal theory, the modernity does not end yet. By the conversion of the rational mode, the modern legal theory will demonstrate its inherent critical and explanatory power once again.