A Historical Review Of The Codification Of Civil Law

The codification of civil law is a hot issue in modern Chinese academic cycles; however, there are few researches on its promotion effect in national unification and rejuvenation under the combination of them from the viewpoint of history, and thereby providing reference for the codification of China’s civil law. Meanwhile, with the increasingly raging wave of globalization and China’s rising as an economic and political power in the world, the reunification and great rejuvenation of Chinese nation is faced with unprecedented opportunities and challenges. Under such historical background, therefore, researches and demonstrations on this issue become even more important and urgent. Being established on such background, this dissertation attempt to discuss and demonstrate the promotion effect of the codification of the civil law in national unification and rejuvenation with the methods of historical analysis, legal cultural analysis, comparative analysis together with vertical narration, taking the codification of civil law not only as a legislating activity, but as a historical and cultural phenomenon, so as to form a regularized cognition.1. Main contents of this dissertationThere are five chapters. First, the "introduction", which elicits the topic from the perspective of the united value of civil law manifested in the globalization of law and the peaceful rising of Chinese nation. Furthermore, it gives a brief introduction of the research method, trail of thought, the value and meaning, as well as the current study situation in home and broad, and its basic definition.Chapter two is the historical analysis of the perception of the code and codification of law. Two clues-China and the west are being used to discuss the implication and historical evolution of the "code of law" and the "codification".(1) About the implication of the "code of law" and its historical evolution.This chapter analyzes the Chinese and western language definition of the code of law and its historical implication by first investigating the etymon, the code of law in China and western language. Then it points out that the code of law in China and western society had been endowed with the implication of compiling the existing legal materials since it came into being. Next, an analysis on its historical evolution was given. Regarding Chinese ancient codes of law, the author believes that the statute had become the fundamental code of law in China’s2000-year traditional society since it was transformed from law by Shang Yang(a political and economic reformer in the Warring States period(476B.C-221B.C) in ancient China). The statute was more systematically completed, and it had gradually covered every social field, forming an extremely-stabilized comprehensive code of law, which perfectly corresponded to the unified multi-national country both in shape and spirit. Furthermore, this chapter looks back upon the evolution of western code of law, and divides the civilization of western code into three periods:the graphization of early precedents, the systematic compilation and iteration of legal articles and regulations, and the codification movement in European continent in modern age. On the basis of analyzing the code history in China and the west, the author holds that the implication of the code is diverse. Finally, the author pointed out in this chapter that the code of law, no matter in China and the west, both came into being for the purpose of unifying and coordinating the existing laws. Thus, unification turns into the original meaning and basic characteristic for the law. Initially, the code of law only enjoyed the formal meaning as a unified legal criterion, but with its increasingly important status in social life and legal system, it had gradually been endowed with spirits, and at last, turned into code spirits.(2) About the implication of "codification" and its historical evolutionAfter defining the general concept of codification, this chapter first analyzes the legal, political, social, cultural and academic value of codified unification, and on its case, the "codification" history in China and the west. In this chapter, the author believes that the codifying technique in China had gradually come into maturity with unique characteristics since the compilation of The Book of Law(《法经》)in the Warring States period, and it had worked constantly for over2000years. Under China’s traditional centralized political system, codification became a significant means of maintaining the unification of the nation. Consequently, Chinese nation has formed the unique extremely-stabilized and unifying codified tradition and law culture. Comparatively, the codification history in Europe is full of ups and downs. The well-developed codifying tradition and culture formed in Roman times reached its peak in Justinian times, laying the foundation for the codification movement in modern age. When the Middle Age arrived, the early tradition of codification collapsed for the sake of various factors like politics and religion, giving way to different tribal precedent laws. When the Modern Age came, the emerging of nation-state and the rejuvenating of Roman law hastened the codification movement. In this chapter, the author holds that this movement is the movement of nation-state, and therefore, the code of law is closely related to nation and the community.In each nation-state, the code became a cultural symbol as it upheld the nation’s independence and unification as well as its vital interests. What’s more, it works as a major tool and object to distinguish and compare different nations.Chapter three is the theoretical foundation of the codification of civil law. This chapter mainly discussed the theoretical problem of the codification of civil law so as to prepare for the following empirical analysis and case study of the codification of civil law.To begin with, this chapter elicits the inner relations between civil law and the code of civil law by stating the important status of civil law for the legal system of one country, holding that the code of civil law is not only the production of the codification of civil law, but the highest legal manifestation of civil law.Besides, this chapter discussed the rationality of the codification of civil law. The author believes that the philosophy of rationalism in modern age hastened the birth of rationalistic thoughts of natural law, which provided the codification movement of European civil law in modern age with complete and sufficient theoretical support. It makes the civil law equipped with the form and rationality value. The formal rationality, on the one hand, emphasizes the rigorous and complete system, strict logical structure and the predictability of the code of civil law, in order to make it be independent and autonomous. The rationality of value, on the other hand, endows the code of civil law with the idea of universal value and the value wisdom of taking the civil law as private law. Indeed, it is such values as the equality of personality, sacred private rights, and autonomy of will that are the exact manifestation that the code of civil law realizes the humanistic pursuit of civil law; it is the secret that the code of civil law perpetuates as the backbone of the code of civil law.Thirdly, this chapter reveals the inner and social function of the code of civil law, considering that the form rationality and value rationality determine that the code of civil law has the basic functions of declaring the value, unifying private law and restructuring social order.In the end, this chapter analyzes the nationalism of the codification of the civil law from historical point of view. The author elaborates its nationalism from two aspects. One is that the code of civil law is the code of the nation, it is manifested that the code of civil law writes and expresses in the lingua franca of its own nation, showing adequate respect and revealing the civil customs, manifesting national spirit, quality and culture. The other lies on the relationship between the codifications of the nation as they are connotative conformed. Meanwhile, the codification of the civil law can strengthen the national identity and maintain the unification of the nation.Chapter four is the expounding of the historical experiences of the codification of the civil law. This chapter begins from the perspective of empirical study by choosing the codes of civil law of France, Germany and Japan as the samples in modern age, Europe code of civil law as the same of present age, to dig into their historical and social background, ideological trend and the process of codification. And so as to locally systemizes and excavates every nation’s motives of codification as well as the relationship between it and the national unification and rejuvenation by comprehensively utilizing the method of historical analysis, analysis of the culture of law and the comparative analysis.Through deep analysis, the author believes that the codification of the civil law, either of different nations in modern age, or of present Europe, has great significance of enlightening reference.After expounding the codification history of the civil law of France, Germany and Japan, the author holds that the code of civil law has the strong power of unifying the private law of a nation-state. Being the product of the modern nation-state, it is the fundamental expressing mode of the state, the direct objectification of national confidence, and sense of pride as well as the spiritual symbol of the nation. In addition, the author believes, after expounding the codification of European civil law in present age, it continues and deepens the codification of civil law of the European nations in modern age, in which reflects European transcendence to the mode of nation-state after Europe had finished the combination of the nation and the state. It is also the inevitable requirement of globalization and European integration as well as the reflection on the law of the phenomenon of European pan-nationalism. From the author’s perspective, the future European code of civil law will be soft, ultra-national and ultra-political. Moreover, the ideal of the codification of European civil law in present age serves as foil to the Chinese road of the codification of civil law in present age. The European mode promoting identity and integration through the codification of civil law has great enlightenment for China.Chapter5is the Retrospect and outlook of China’s codification of civil law from the viewpoint of national reunification and rejuvenation. Based on the history of China’s codification of civil law in modern age, this chapter dissects the situation and malady of the "One country, two system, four districts of law" in present China, and further gives an analysis and outlook of the possibility and feasibility of Chinese nation’s reunification and rejuvenation through the codification of civil law in present China.Being established on the theoretical analysis, historical expounding and rules discussion, this chapter combines the above conclusions with China’s history and current situation. First of all, it looks back upon the history of China’s codification of civil law in modern age, pointing out its historical inevitability and its inner relations with Chinese nation’s reunification and rejuvenation. This chapter, then, demonstrates the purposiveness, possibility and feasibility of China’s codification of civil law in present age by dissecting the reality and malady of the quadrant pattern of present Chinese law, and further analyzes and forecasts the promoting effect of such codification in Chinese nation’s reunification and rejuvenation. To achieve the great rejuvenation, the reunification is the road we must follow, and the reunification of legal system is its indispensable mark and approach. Today, the favorable factors such as Chinese nation’s unified legal history and code tradition, the attempt and experiences of the codification of civil law in modern age, the historical opportunity of peaceful rising in the background of international legal convergence, and the relationship of mutual-dependence on economy of the four districts in both sides of China, the common character of national traditional cultural psychology, together with the preliminary forming of the civil society in mainland China, all of these make the codification of China’s civil law possible and feasible. The unification of China’s civil law in present age should make fully use of these favorable factors to eliminate the system barriers of private law in the four districts (the mainland, Hong Kong, Taiwan, Macao) and so as to build the unified domestic market. When referring to the experiences of codification of western countries, the system of private law in Taiwan, Hong Kong and Macao, and the traditional factor should be properly considered to complete the embracing and open codification. The author believes in this chapter that one code of civil law aiming at improving national common benefits and identity is able to lay the foundation of the unification of the system of private law in the four districts in both sides in China, and finally promote the reunification and rejuvenation of Chinese nation.2. Innovations of this dissertationFirst of all, the purpose of this dissertation is to demonstrate that for a country which has not unified but with codified tradition, the codification of civil law can realize its unification of private law and further promote the unification and rejuvenation of a nation. The research findings may fill the gap in domestic academic cycle that lack of research on the meaning of codification of civil law on national unification and rejuvenation.Besides, based on the background of the globalization of the law and the historical tradition of Chinese nation’s unified civilization(particularly the unified civilization of legal system) and the experiences of the codification of civil law in modern age, the possibility and feasibility that overcoming the market barriers caused by the different system of private law in the four districts in China through the way of the codification of civil law, so as to build a unified domestic market and economic community that the national mutual benefits, identity, unification can all be achieved. This foreseeing analysis will definitely provide Chinese nation’s reunification and great rejuvenation with theoretical support and reference.Furthermore, by combining and demonstrating the inner unified value and national unified value embraced in codification, this dissertation plans to demonstrate the significant effects of the code of civil law on Chinese nation’s reunification through their common characters. Thus, it will offer a new theoretical viewpoint for the academic cycle to discuss the necessity and inevitability of the codification of Chinese civil law.In the last place, this dissertation is a fundamental study of the issue of China’s code of civil law, in which its findings will supplement and complete the necessity, inevitability and feasibility study of the codification of Chinese civil law. What’s more, it will serve as an important theoretical reference for the legislating style, mode, spirit as well as the value, the meaning of the code of Chinese civil law in the future. Disadvantages of this dissertationIn the first place, because of the author’s limited knowledge structure, this dissertation confines the study to continental legal system and only discuss the codification of continental nations, without referring to the codification of Anglo-American legal system, which makes the demonstration more reasonable on the basis of overall comparative analysis, of which will be the direction of the author’s further study.Moreover, in expounding the empirical analysis and historical case of the codification of civil law in history, the author chooses the typical phenomena in France, Germany and Japan; however, the samples are not enough to make a reasonable and objective conclusion.Thirdly, as this dissertation covers many principles like civil jurisprudence, the science of legal history, ethnology, culturology of law and sociology of law, the topic is much broad that the author cannot completely master it due to his limited knowledge structure and demonstrating capacity. Therefore, some understanding and application on unreasonable and immature related study fields and viewpoints are that the demonstration of the main idea and the regulatory understanding of some problems are not sufficient.Finally, the holding of materials deeply influences this study because of the difficulty in collecting foreign documents, the source of materials is still limited even though the author has made ever effort to get over. Consequently, in the future the author would spare more effort on studying in a broader horizon, especially some comparative study of related institutions.To sum up, the author believes that this dissertation is just an entry-level and immature product but it is a cornerstone for the author to learn and improve in the following dissertation writing and study.