On The Conflict Between Chinese And Western Legal Cultures Against The Backdrop Of Globalization

At the present stage, human society is experiencing a historic transformation and globalization has become the premise to people's reflection on their existence and development. In the process of globalization, the conflict between different legal cultures becomes fiercer than ever before, and every state and nation faces the problem of the choice and reconstruction of legal culture. Efforts have been made in this paper to investigate the conflict between Chinese and western legal cultures against the backdrop of globalization with a view to exposing the overall trend and law of its development and providing theoretical proof and support for our correct understanding and choice of the modern approach to legal culture and for our construction of the advanced socialist legal culture.This dissertation consists of five chapters, the content of which is as follows:Chapter one centers on the clarification of the basic theories on globalization and the conflict between legal cultures. This chapter is devoted mainly to the definition of important concepts and categories, in order to secure basic logical premise for further argumentation. The concept and basic theories of globalization have been first introduced. Globalization is not only about the description of the objective state of affairs of human practice and interaction, but also about the necessary trend of human history from that of nations to that of the whole world. Globalization is the specific time and space of the conflicts and integration between Chinese and western legal cultures. The analysis on this basic category is the precondition for further discussion.Therefore, attention has been directed to the investigation on the dating, features and characteristics of globalization as well as their relevance to the contemporary development of Chinese legal culture. Secondly, efforts have also been made to analyze the basic concept, structure and function of legal culture to better grasp the concepts and theories concerning the conflict between different legal cultures. At last, since this paper dwells mainly on the evolution of the relationship between Chinese and western legal cultures, this part also concerns itself with the basic theories of the conflict of legal cultures, including the concept, causes and function of the conflict of legal cultures. Special attention has been paid to the effect of globalization on the conflict between legal cultures.Chapter two is concentrated on the historical retrospect of the conflict between Chinese and western legal cultures. The purpose of this chapter is to reflect on the historical communication and conflict between Chinese and western legal cultures, the summary of which will help us secure relevant experience and law and to better prepare us for further elaboration on the evolutionary trend of the conflict between Chinese and western legal cultures. This chapter comprises three parts. Part one is about the comparison and contrast between the tradition of Chinese and western legal cultures, the purpose of which is to disclose the difference and to explore the intrinsic source of the conflict. Part two concerns itself with the analysis and summary of the process, source and characteristics of the conflict between Chinese and western legal cultures. It is aimed to further understand the general scenario of the conflict, especially the evolution track of China's traditional legal culture. Part three focuses on the nature, effect and consequence of the conflict between Chinese and western legal cultures in modern era. It is pointed out that the modern conflict between Chinese and western legal cultures is that of two civilizations, that is, the civilization of natural economy and that of modern market economy. Western legal culture disintegrates Chinese traditional legal culture, while at the same time, it triggers the initiation of the process of modernization of China's legal culture. Therefore, the conflict between Chinese and western legal cultures should be viewed in a dialectic way.Chapter three centers on the communication and conflict between Chinese and western legal cultures against the backdrop of globalization, the main part of this dissertation. This chapter includes three parts as well. Firstly, with globalization as the backdrop, the exchange and communication between Chinese and western legal cultures has been surveyed both in theory and practice. Special attention has been directed to the active role globalization plays in this process. Secondly, with comparison and contrast of the conflict between Chinese and western legal cultures in the previous era as a condition, the causation, manifestation and features of the conflict against the backdrop of globalization have been explored. It is pointed out that the conflict between Chinese and western legal cultures stems not only from static cultural difference, but also from the enhancement of cultural intercourse driven by the trend of globalization. This conflict is not only about conception-centered legal culture, but also about material-centered aspects of legal culture. In the conflict between Chinese and western legal cultures in the previous era, Chinese legal culture is forced to change and adapt itself and western legal culture is recognized in a one-dimensional fashion. In the era of globalization, China's choice of legal culture is based on mutual interaction and active and autonomous choice. Thirdly, the nature of the conflict between Chinese and western legal cultures against the backdrop of globalization has been analyzed. It is emphasized that in this conflict, we should on the one hand face western legal culture open-mindedly, and on the other hand, we should also be aware of the trend of colonialism and hegemony of western legal culture.Chapter four is about the evolutionary trend of the conflict between Chinese and western legal cultures. My overall opinion is that the conflict will de dissolved and integrated. This is determined by the generality and compatibility of legal cultures, as well as by the overall direction and trend of the global development of world legal cultures. Therefore, this chapter supports the trend of the globalization of world legal cultures, and the possibility of the dissolution of the conflict between Chinese and western legal cultures both in theory and in practice. Although Chinese and western legal cultures stem from different time and space and living and production practice, thus presenting distinguishable differences and features, they are not altogether closed systems. They are instead open systems that share the feature of generality and compatibility. They all share some universal values and their compatibility also makes it possible for the two systems to communicate and exchange. Besides, the globalization of world legal cultures enhances the communication and exchange between the two and promises a process of the dissolution of the conflict. After the dissolution of the conflict comes integration and it is an organic process, too. For Chinese legal culture, this process of integration means rational taking and abandonment of traditional Chinese legal culture and western legal culture and the construction of the mode of legal culture which meet the need of Chinese society.Chapter five is focused on the value choice of the conflict between Chinese and western legal cultures, and it is the ultimate conclusion of the previous argumentation. After the analysis of the exchange, conflict and integration of two legal cultures, efforts have been directed to the construction of an ideal model for contemporary Chinese legal culture, and the exploration of the concrete approach to this model. Firstly, the concept of the model of legal culture has been introduced. Specific analysis has been directed to the classification of the models of legal cultures, the transformation of legal cultures, etc. It is pointed out that the construction of the ideal model of Chinese legal culture should take into account China's own characteristics. China's advanced legal culture should be a socialist one and it embodies all excellent elements of traditional and western legal cultures. To be specific, it is a legal culture that centers on the rule of law, it should be right-oriented and it is a modern legal culture different from a traditional one. Secondly, with China's specific state of affairs as a background, this chapter analyzes the concrete approach to this ideal model. With relevant theories as a foundation, special attention has been directed to the theory of local resources and legal transplant. Our best possible approach includes into it the criticism and inheritance of our traditional legal culture and the differentiation and absorption of western legal culture. In the final analysis, a socialist model of legal culture with the culture of the rule of law as the main body, with excellent traditional legal culture as its foundation should be our aim.