| The rule of law is inevitable choice of the modern civilized nations. How to transplant or construct an order of a western law in China where "rule by ceremony" tradition has been rooted? How to purchase the breakthrough of construction of the modern rule of law for realizing the transform of the modern rule of law pattern? It is a most important historic subject explored and practiced in Chinese society constantly of the recent hundreds of years.Since the reform about the traditional legal system was carried out according to "New Policy" in late Qing Dynasty and the western law system was ushered in, Chinese rule by law construction has experienced difficult turns and twists. But up until now, the practice and fulfillment of rule by law construction still cannot make us feel optimistic. As far as I am concerned, the Chinese so called "rule of law construction", to some extent, is just the transplantation or reconstruction of the western legal system in modern China. The background of Chinese rule of law construction or the social foundation of the existence of "rule of law" is that the traditional China is basically a society supported by "rule by ceremony", but not like the western society, which is mainly governed by "laws". To investigate and analyze the internal contradiction between the traditional Chinese political culture and the modern rule of law principles, to explore the transform of rule of law pattern from traditional to modern that is suitable for Chinese conditions, has both theoretical and practical values for the rule of law construction of the future China.This article commences from the comparison of the basic characteristics between Chinese political culture and the western's. Followed by the detailed comparison and analysis about the traditional Chinese rule by ceremony and the western rule of law from aspects of both historical origin and realistic sense. Then examine and analyze the conflict of contradiction according to the meditation about the traditional Chinese rule by ceremony and the universal value of the western rule of law. Then to reveal the three greatest barriers of Chinese rule of law construction and the order of law: namely the repellence of "authority superiority" in the traditional political culture to "lawmsuperiority" principle of modern rule of law; the conflict between the spirit of traditional "rule by ceremony" and the principles of equality and universality of the modern law; and the conflict between the instrumental orientation of the traditional legal culture and the modern rule of law principles for the purpose of ensuring the human right and the freedom. This conflicts and incompatibility reveal further that it will be unprecedentedly difficult to carry on rule of law construction in China where there is no such tradition. After researching about the phenomenon of the slow development of Chinese a-hundred-year rule of law and the hindrance of the traditional "rule by ceremony", the issue about the transform of the modern rule of law pattern was inquired: the effect of the Chinese rule of law construction mainly depends on whether a mechanism can be established as soon as possible so that the transform from the traditional rule by ceremony to the modern rule of law can be realized. Exactly speaking, it should begin from two sides through conception and legal system in order that both rulers and the whole citizens can truly accept the modern rule of law principles and form the habit of respecting laws and complying with laws voluntarily. At the same time inheriting the outstanding achievements, realizing the new creation of the legal culture, namely to complete and perfect the system of legislation, law-enforcement, judicature and supervision by law, perfecting the legal system, realizing the effect of supervision through establishing a perfect legal system.The gist of the article is to elucidate: there is still a long way to go and a heavy burden to shoulder about Chinese rule of law construction. It should follow the common law of rule of law as... |
