On Legal Convergence

With the development of human's legal culture, for social progress and national interests, the laws of different countries get close to each other in the exchange of mutual penetration, presenting a tendency of harmonization in a frame of legal-cultural diversity. During this intercourse, there are not only the reverse trends that the different cultures are conflicting and denying, but also the response form in which the legal cultures are melting and accepting each other, reflecting the legal culture's adaption in development and assimilation in adaption, which promotes the formation and development of the legal harmonization. This dissertation tries to interpret this progress from the perspective of historical evolution.The legal harmonization is deepening ceaselessly in the social development oriented in the development of economy, which can be tracked in both theory and practice. At present, there are numerous theoretical forms about the legal development tendency, among which the theories of "legal globalization" and "legal localization" are most representative. However, for the various positions and angles, the positive and negative arguments of the "legal globalization" and "anti-globalization", as well as the theory disputes form in the arguments of the "legal globalization and localization", has become the central issue on which people's attention widely focuses. It has been discovered, these theoretical differences primarily lie in the different comprehensions of the relevance field between law and society, as well as the different interpretations in the state sovereignty concept of the world pattern. Therefore, the scientific judgment of the legal harmonization is proposed as the theoretical form which will reconcile the disputes indicated above. As a modified and supplementary form of the theories of legal globalization and legal localization, the view of the legal harmonization theory is based on the recognition of the diversities and differences of the world legal cultures, which emphasizes the progress of culture's penetration and adaptation. Throughout the process of tendency, there are harmonization within the multi-framework, the combination of traditional and modern factors, the balance between human rights and sovereignty relations, in addition with the unity of the legal internationalization and localization. Whether these contradictory relationships could be appropriately comprehended and handled is of great significance for us to interpret the legal harmonization phenomenon and improve the construction of law system in our country.The phenomenon of legal harmonization, which almost can be derived from the beginning of law existence of mankind, has been long-standing for a long time. In the west, as an origin of human civilization of law, Roman law is applicable to people ranging from the roman citizens to everyone in the empire during the formation period, which indicates that the political power may serve as the driving source of our law change. With the change of society and the frequency of trade activities, the field of legal harmonization has been increasingly enlarged as well. Till Middle Ages and the Renaissance, with the research collections of glossators and jurists, as well as the influence of some historical and social factors, the Roman law and works of glossator gradually had become the communis juris for all Latin and Germanic people. The common law system, thought and language resulted in a wider sense of law Harmonization in western European countries. In other words, with a long period of conflicting and combining, Roman law finally accomplished its historical mission in the form of the communis juris in the process of legal development in the West. Although it had been gradually replaced by the movement of codification in West Europe in the later Middle Age, its rational thought of natural law and scientific methods of law interpretation had been preserved as a cultural inheritance, which exerted a significant influence on countries with common law and civil law system even on non-western countries in different ways. In fact, it had been the important power to promote the modernization of legal systems in Western Europe. In Oriental society, while there does exist more complicated multi-culture and striking nationalism, its phenomenon of law harmonization is no less than in any other part of the world. The Eastern legal system which is constituted of the Chinese legal system, Indian legal system and Islamic legal system, had penetrated into the legal culture of the whole oriental society and influenced the development of legal culture with local customary laws in ancient society; whereas up to modern society, with the rise of western countries and their colonial expansion, Eastern cultures of law began to contact with the western cultures. Under the pressures of external elements, the oriental countries had commenced changing their legal system in order to adapt the social development, which presented a picture of cultural integration between the East and the West. Since the modern times, the development of free competition and values of individualism made law more relevant to the economic, political and cultural conditions. Globalization has become the most distinguishing feature of modern society; in such context it is more obvious that the trend of world law development appears more harmonized. The phenomena, such as the accelerating process of regional unification of legal system, the formation and combination of the two legal systems, the harmonization breaking through some traditional features in public law field and the internationalization in the private law field, reflects that both the breadth and depth of law harmonization are going beyond any times before. This dissertation is aimed to explore the causes of law harmonization from the prospective of each phase of world law development in different aspects such as the politics, economy, society, culture, etc. It also induces that the intercommunity factors of law development that is the degree of law harmonization are limited in different historical stage and in different regions. This limitation depends on many factors including the defense of state sovereignty, unbalanced development of economies, adaptability of different country's citizens, and the heterogeneity in global legal cultures and so on.The dissertation is to explore the trend of legal development in the world and study the background of legal harmonization, from various angles of the legal harmonization theories'formation and development, legal development in different times in the East and the West, and the interaction among different legal cultures in the historical background of globalization, so as to put forward the author's opinion——the limitation of the extent in legal harmonization, which provides a new perspective of thinking for China's contemporary construction of legal system.