Conflicts Between Old And New Ethics Of Law In The Late Qing Dynasty And Early Republic Of China

The conflict between the new and old ethics during the legal system reformation is a matter of great concern in both law circle and ethical circle.This kind of conflict in the late Qing Dynasty and the early Republic of China sets up a page to promote modernization of legal system of our country.What's more,it is this kind of conflict that shows the fundamental differences and contradictions between Chinese traditional ethics and the Western modern ethics for all to see.Therefore,the core work of this paper is to examine and reflect on the conflicts between old and new ethics in the late Qing Dynasty and the early Republic of China from the perspective of law reform.Through in-depth interpretation of the times and ideological roots,this paper systematically analyzes the ethical interaction between the four pairs of categories,so as to clarify the ideological misunderstandings such as "jurisprudence has nothing to do with ethics ","law is better than etiquette" and "Western law is better than Chinese law".Then the paper analyzes the triple levels of logic(negating Ethics-determining Jurisprudence-returning to ethics)which are contained in the internal conflict between old and new ethics in the law in the late Qing Dynasty and the early Republic of China.And the question of how to correctly deal with the coordination and integration between traditional ethics and foreign ethics in the process of legal modernization is also discussed in the paper.Firstly,this paper discusses the era conditions and ideological roots of the conflicts between old and new ethics in the law in the late Qing Dynasty and the early Republic of China.From the current academic analysis of the ideological roots of the conflicts between the old and new ethics in the law in the period of late Qing Dynasty and the early Republic of China,the vast majority of scholars tend to hold the belief that legal school advocates the ideas of supporting the ancient system,while ethical school advocates the view of ethics going first.Through the analysis,the writer points out that the essence of jurisprudential school highly praising the western modern jurisprudence is to completely separate themselves from traditional ethics and carry out reform from the past instead of carrying out the law reform under the guise of traditional ethics;and the essence of ethics school advocating that the reform should be combined with traditional ethics and customs is to build a link between etiquette and law and between Chinese and western legal texts with the ideological connotation and ethical guidance of practical application,rather than the empty talk of ethical supremacy.Secondly,this paper tries to systematically investigate the historical process,main causes,debate focus and final effect of the conflict between old and new ethics in the law in late Qing Dynasty and the early Republic of China from the four pairs of categories of "changing road--changing law","subjects-nationals","family--individual" and "righteousness--benefit".Then the paper discusses and analyzes the relationship between legal reform and ethical conflict which includes the following questions,such as what do the traditional legal ethics look like in the late Qing Dynasty and the early Republic of China;how does the western modern ethical thought influence the legal reform in the late Qing Dynasty and the early Republic of China,how do the traditional legal ethics actively shape the value foundation with its own characteristics while tenaciously adhering to it,whether the results of these ethical conflicts realize the real integration of western modern law and local traditional customs,and what are the deep ideological roots that affect the formation of legal ethics.In fact,the ethical conflict between changing the way and changing the law is based on the theory of conscious ethical choice.With the awakening of people's realization of freedom and consciousness,scholars in late Qing Dynasty and early Republic of China set up the basic provisions of national ethics in its own form in order to construct the value presupposition of community goodness.The reflection of reshaping the consciousness of national community in law is showed by the national ethical consensus of abolishing consular jurisdiction and striving for extraterritorial jurisdiction.As to the issue of specific appearance and form of a country,scholars from the jurisprudential school,based on the political ethics of Locke,a modern western thinker,advocate the idea of setting up political country by changing the way and law;While scholars from the ethics school expound from the perspective that traditional ethics is the foundation of Chinese society,and advocate the establishment of an ethical country by changing the law only.The jurisprudential school plays one-sided emphasis on the effectiveness of vertical legal relations,which leads to the legal pattern that everything should follow the Western law regardless of the attribution of the legal system and the degree of fitness.The essence of the ethical conflict between the subjects and the nationals is the conflict of personality value orientation in the law in the late Qing Dynasty and the early Republic of China.In traditional Chinese law,the subjects do not have the subject qualification of independence,freedom and equality.The emergence of "national" consciousness is not only the manifestation of Chinese people's awakening,but also the symbol of Chinese society's desire for change.The personal values of the definition of “national” lies in the following aspects: it breaks the traditional ethics of monarch and Minister,eliminates the dual structural relationship between monarch respect and minister inferiority,and disintegrates the ruling order of autocratic monarchy.As to the national ethnics,through the unremitting efforts of Kang Youwei,Liang Qichao,Tan Sitong,Yan Fu and Sun Yat Sen,the legal system ensures the people to have independent,free and equal personality value,and gives people the right to participate in national political affairs.This situation shows a positive significance of resisting autocratic rule.The ethical conflict between family and individual is the most intense ethical conflict in the law in the late Qing Dynasty and the early Republic of China.The deep reliance of traditional law on family based on ethics not only makes individuals lose their natural equality and independence,but also their inherent rights and freedoms.On the surface,the focus of the debate between the Jurisprudential school and the ethical school is on the preservation and abolition of ceremony and law,but the essence focuses on two kinds of ethical conflicts,that is,the conflict between the particularity of family ethics and the generality of personal ethics,and the conflict between the belief of family ethics and the responsibility of personal ethics.However,in the context of Bring Principle and Catching-up Doctrine,Cost Theory is actually a false proposition which prefers generality and responsibility of personal ethics rather than particularity and faith of traditional ethics.In fact,in Cost Theory,the liberation of personal ethics is regarded as a tool,and personal ethic is used as an intermediary to subvert family ethics and to achieve national ethics.Therefore,the two kinds of ethics coexist in the same law system,competing with each other.The ethical conflict between righteousness and benefit is mainly reflected as the conflict between the traditional Chinese view of valuing righteousness over benefit and the modern western view of valuing benefit over righteousness in the formulation and implementation of civil and commercial laws in the late Qing Dynasty and the early Republic of China.Some thinkers advocate the western view of valuing justice over benefit which means to pursue profits and wealth in essence.As a result,people are easy to give up morals and ethics in face of the profits.The ethical spirit should focus on its essence.Therefore,the traditional view of valuing justice over benefit rises.These ethical thoughts are reflected in the civil and commercial legal norms,which are directly reflected in the following aspects: the freedom of ownership and contract in the reformed national laws;the importance of the value,profits over righteousness,in the liability of partnership shareholders to pay off debts.In the folk customary laws and the judicial practices of Dali court,the traditional view of valuing justice over benefit influences certain actions,such as the application of the principle of good faith,the necessary restrictions on the expansion of power,and the maintenance of the elderly etc.It is obvious that changing or creating Chinese traditional law according to western modern ethics dose not solve Chinese social problems in the late Qing Dynasty and early Republic of China.Finally,from the perspective of the logic of conflict,this paper makes a panoramic interpretation and logical clarification of the old and new ethical conflicts in the law in the late Qing Dynasty and the early Republic of China,and discusses the integration of Chinese and western legal ethics and the modernization of Chines law.The conflicts between old and new ethics in the law in the late Qing Dynasty and the early Republic of China are mainly manifested in the competition of three logics which are used to determine the scope and content of the law: the deconstruction of the relationship between etiquette and law,the construction of the relationship between benefit and law,and the reconstruction of the relationship between reason and law.The basic logic of the conflict is the process of negating ethics-determining Jurisprudence-returning to ethics,which is used to solve or surpass real social contradictions.However,the four legal ethical conflicts in the late Qing Dynasty and the early Republic of China have not been fundamentally solved.These historical past and existing experiences enlighten us that Chinese and western legal ethics have their own advantages and have the possibility of accommodation in a certain legal field.In the process of legal construction,we need not only to learn from foreign legal systems,but also to appropriately respect and retain the nation's traditional ethics.The differences,coincidence and complementarity between Chinese and western legal ethics still need deep spiritual understanding and profound ethical consciousness.As the thought of law and the soul of law,the ethical thoughts still need to be considered.We should not only inherit the blood of traditional ethics,but also connect with the requirements of social development.At the same time,how to show Chinese position,Chinese characteristics and Chinese temperament in law system is still an important issue to consider.