The Law From The Perspective Of Rational Civilization Transition

We have been wondering whether law is a rational being. Historicaljurisprudence and legal realism both doubt the rationalization of law, while some legaltheories and juridical practice tend to be anti-rationalism. Actually, as an importantsubject matter, Rationalization of Law is deserves to be discussed in both theory andpractice. In the west, As concepts，rationalization of law, as well as rationality andrationalization, has been being cultivated by a continual western philosophy tradition.From the Greeks to so-called postmodernism, theories and practices of law has beenclosely related to the concept of rationality. Rationality, of course, has been seen as anextremely complex concept, which contains lots of multifarious connotations anddenotations in the history of western social sciences. Actually, rationality is not thatcomplex, and it is a Thinking Mechanism that points at cognizing and behavior choice.And then, how is it expressed in both cognizing and practicing? Especially when weturn to the interaction activities of society and the organizing of national politics, theeffect of rationality would be reflected directly in rule designs and systemconstructions, which provides law to this study. Therefore, the internal relationshipbetween law and rationality should be explained. Meanwhile, as system basis forsocial interaction and public life, law’s degree of rationalization must adapt to theknowledge accumulation and practical experience of people, so the rationalization oflaw should be analyzed from the perspective of historical logic. However, in existinghistory conception, rationality had been rethought and even been doubted. But therelationship between social development and rationality should not been denied. SoRationalization of Law has to be explained in a reasonable historical logic.Consequently, this study chooses Civilization Transformation that express reality,inevitability and dynamics, as theoretical, historical and methodological background.In the history view of civilization transformation, this study makes comparativeanalysis on horizontal and vertical, in order to abstract the development course of lawrationalization in the process of civilization, and extract the base attribute, objectiverequirements and changing course of rationalization of law. Accordingly, many doubtsin theory and practice will be resolved gradually.This study includes three parts: introduction, main body and conclusion. Theintroduction section includes study origin, research method and research design. Theconclusion section is a brief summary of this complex study, and it is ascribed to theunstoppable trend of rationalization of law. The main body has three chapters in all, from the logical connection between the chapters it can be divided into three parts.The first chapter is aimed at the construction of the theoretical foundation. Firstly,the concept of rationality is explained from the aspects of cognizing and acting, whichintegrates the intension and extension of rationality, and which points at law that is thecenter concept of this study. Secondly, this study explains how rationality sendspeople to devote themselves to the construction of social order, which makes thethinking mechanism of rationality much more comprehensive. Finally, start with theconfidence in rule, this study explained rationality as the kernel of law.Chapter II is designed to achieve the perfection of the historical basis of thisstudy. After the analysis of the different aspects of the rationalization, the unreliabilityof the concept of modern as the core of both history and logic stand out, and so thestudy goes on to explain Civilization Transformation as an opportunity to find aconception of history that fits with the rationalization of law. In view of thedistinguish type of Agriculture Civilization-Commerce and Industry Civilization, thisstudy analyzes laws of Agriculture Civilization basing on rationalization of law. Onthe basis of the above analysis, this study explores historic opportunities for therationalization of law with the complexity of social relations in the field of vision ofthe transformation of civilization, trying to fully resolve the historical character of thelaw in the process of rationalization presented.The third chapter points at the explanations of institutional perspective for thisstudy. Start with the demands that rationality makes to people, the basis of rationaldesign of law has been explained, which leads to the comprehensive analysis of legalideas. However, this study does not stop there, but opens a further exploration. Takingdefects of legal rational design into account, this study gets more in-depth explanationof rationalization of law from the perspective of civilization transformation. Based onthe dynamic historical perspective, from the macro and micro perspective, we make athorough inquiry of self-improvements of law in Commerce and Industry Civilizationin the19th and20th century. What’s more, the geographical differences of thecivilization transformation will be interpreted, which reflects the practical significanceof this theme in China.