On Identification Of Law

Legal identity refers to a kind of common recognition and resigned acceptance of a legalsystem by the social community members based on their own experience and the rationallogic, which made by the lawmakers for guidance and coordination of the social life, providedthe legal system accommodates to the realities of society, or conform to the public opinion, ormeet the needs of national long-term development, and the description of the laws andregulations should have some affinity with their way of life and their language, and should beable to maintain their value, freedom and dignity, and therefore legal identity is also thepositive inner emotions used as their behavioral standard. As a complicated process ofconstruction and communication of information, legal identity derives from three aspects ofrational judgments: whether the law reflects people’s independent will and their interests,whether it is able to deal with benefit-based relationships fairly, and whether the compulsionand practice way have legitimacy. As a kind of inner emotion resulting from syntheticjudgment, the characteristic of legal identity, in the first place, has an obvious personalizedfeature, and this special understanding activity based on limited rational persons must besubject to object at the same time, and therefore the recognition has a dual construction andconstraints process, characterized by continuous unity of subjective and objective. Legalidentity characterizes the feature that common recognition cannot be accomplished in onemove to the public for whether the current law responses the social multivariate quality. Legalidentity formation is that identity subjects according to the specific structure combine a seriesof legal psychological elements dynamically, so as to internalize the legal system as the legalidentity, and realize the source transformation from legal authority of respected "experience"into the legal identity itself. That is, the identity subjects experienced legal cognitiveacquisition, Legal emotional cultivation， legal evaluation formation and legal identityrecognition. After people possess common recognition of law, the law would internalize intopeople’s "internal point of view". Influenced by the positive attitude, people would adjust theirlegal consciousness constantly and consciously, bridge the gaps of legal awareness betweenthemselves gradually; under the guarantee of the good legal system operation, it is necessaryto establish the legal authority so as to lay a solid foundation for rule of the law.In terms of civilized nation law is culture. The change of any national "law" cannot get rid of the impact of the social community transformation and their common historicalexperience, so the national timely “legal” identity for each member depends on theaffirmation of the internal legal awareness and common historical experience. Then from theperspective of cultural attribute of law, in the historical dimension, with the view of“China-centered approach”, based on Chinese legal development as the story line, maybe youcan find there is something which belongs to the Chinese unique common historicalexperience and collective memory. Our ancestors sketched the prototype of the Chinesetraditional legal identity according to the transformation process from the "punishment" fearof the theocratic law to the "god" fear. After the deities gradually out, the concept of "theemperor","the virtue ","the manner" changed to the "junction of manner and law", and as aresult of, the combination of "the feeling, the principle, and the method" became the key tothe public identity of feudal proprieties. The law is no longer just as "god will” discovered bya wise man, but as a kind of concrete "manner" adopted by ordinary people. That is as theso-called "objects do justice","law enforcement original feeling." Confucianism is subjectedto so strong impact by the western thoughts that "the law of the unity" situation spanned morethan two thousand years is gradually broken down, Feudal law emphasized "method togetherwith the human, the method of inverse and dragon’s" also then walks down the altars, andChina begins to say good-bye to the time without such changes for three thousand years. Inthe face of increasingly westernization, full of strange ideas of "Chinese and western" law,Chinese people naturally get in a trouble: how can the law be credible? For the time been, byarousing memory of people for national identity became the way of remodeling legalrecognition, and "home countries isomorphism","politics and religion as one","subjectconsciousness" as the main content of the theory of the state is the possible path to condensepeople for the national identity. Of course, Chinese law, national traits of respecting and usingpractical reason originated from "karma culture" and farming economy, is also one of sourcesof Chinese traditional legal identity.In recent years, the circumstances combined the features of professional diversification,population migration and the lack of “concept of soil” gradually make the unique traits of"stillness of social sate" and "social pattern with difference sequence" become “post-ruralsociety”, and the pattern of “social family” disappear gradually, social mutual trust decline,and the gap between people increase. At this time, the “manners” as the core value oftraditional rural society adhered to the regulations and the social order have been torn by the modern civilization. The national are obsessed in the tangle of the traditional legal identitywith “post-rural society”, and the conflicts of collective amnesia resulting in consciousnessdiversity and social system unification. The scene of "unity as one, and in step" became agood prospect for the diversified social people. However, the mainstream of Chinese Marxismideology does not give up the room to "new enlightenment" intellectual young men in1980s,nor let "wholesale westernization" become a sole direction of modern legal development. Onthe contrary, Confucianism re-emerging from the frog of spirit crisis and“non-acclimatization” of western culture recently becomes the only choice for Chinese peopleto build up the culture identity when dealing with western culture shock. Then, the modernexperienced confusions of “indigenous reality”."Whose law" and how to "re-state" lawbecome their problems. In addition, the confliction between the alien and debased practicalrationality some people hold and the infrequent law and the regulation the state providesbroadens the gap of individual and the state. Under the influence of people regarding forpractical reason, and disregarding for procedural justice, modern law come back to thecommunities, while people have to face an embarrassing situation for they could not “affordto”, are not able to and do not want to use the state laws. This leads the people, who welcomethe state law in heart, to evasion of law in the judicial practice, and with the private aid forceto safeguard their interests as the best choice. In the society, especially in the local community,"no legal order" also appears unavoidable.Currently, China is in the era of "solution spirit" called by Weber, the past all themysterious authority and the rational thinking derived from enlightenment faded awaybecause of the impact of knowledge explosion and spring tide of secularization. All systemsand conventions are faced with the pressure of deconstruction and reconstruction due to valuepluralism and instrumental rationality expansion. To accord to the situation, under the impactof diversity people’s guides to social action and strategies of ideology in interests, values andway of life unfold the trend of diversification. At this time, the current situation of modernChinese legal development confronts "is not the historic change of value consciousness andcultural spirit, but a kind of discourse mimic and choice", which caused a crack of "imaginelaw" of the ordinary people and "legal imagination" of legal personality, and the conflicts ofpeople’s fragmentized legal awareness and modern legal system brings effects of "prejudice"between the two sides of legal person "immoral" and the "non rational". In order to eliminatethis kind of "prejudice" and realize reconciliation of "imagine law" and "legal imagination", it becomes inevitable to build a legal thinking accepted by ordinary people by the way ofguiding their opinion to legal expression and practice so as to build a whole unity. However,to reshape people’s legal identity cannot be resolved by means of "technology", but by theeffective way of change from inactive identity to active identity. So, first of all, we shouldattach importance to guarantee of the rights of people, for the principle of "people-oriented" isthe core of the law of the development. To make sure different benefit main bodies involve inenacting legislation, we are supposed to take negotiation and dialogue to solve the modernlegal puzzles of “how legality could be valid”, by which the legitimacy of multiple interestsand the value of the different interests of the game would be confirmed, and compositemultiple interests of "perspective fusion" can come true, so that the benefit identity would riseto value recognition, and internalizes a deeper psychological consciousness as a kind of egoneeds. Of course, the rule of law environment of the independent identity not only includes a"good law", but also need "good law of governance". Therefore, the master and use of lawthinking by the power also become one of conditions to realize legal identity finally.Of course, in a more macro point of view, eventually, law spirit will only come from ahistorical formation, but can’t completely change the national spirit. For a certain national, thelegal identity possesses special characteristics of the nation in spite of the influence of othermultiple factors, and furthermore, legal identity still embodies identity of the national ethicsin essence. Thus, in the case of the differences between the "conservative" ethics and the"radical" modern law will continue to exist, the law in China must try to reconcile with theChinese national ethics.