Legal Transplantation And Legal Identity

This Article focuses on the dilemmas of the legal modernity in Chinaunder the context of legal transplantation and imports "legal identity" as acore concept for discussing possible solutions. Legal identity is realizedthrough games and communications within individual groups and estates andcan be divided into four dimensions, namely belief, emotion, custom andrationality. The author intends this research to achieve the three followinggoals: firstly, reconsidering the current research pattern of legaltransplantation, trying new paradigm based on new underlying principles andproviding possible solutions for resolving the deviation of fact against ruleand legal system against legal spirit under the context of legal transplantationbased on clarifying Chinese history development chain and rethinking theChinese legislation;secondly, by analyzing the dilemmas of legal modernityin China, demonstrating that the topic "legal transplantation" in fact is oneform of a much broader topic "legal modernity" and changing the formerresearch which only emphasizes on the empirical and historical developmentand thus making it a real jurisprudence issue;thirdly, discussing the motives,feasibility and practice of legal identity in Chinese context.This article, rest on social theory, is a research of Chinese legal issuesfrom both the history and sociology perspectives. It first depicts that since themodern history, three dimensions namely modernization, rule of law andnation revival had become soil fostering legislative system in form of legaltransplantation and its goal value and ideal blueprint. Then it is held that thelegal transplantation had become necessary approach of social changing andlegal transform and describes the process of legal transplantation. Then, theArticle discusses five dilemmas of the legal modernity in China under thecontext of legal transplantation which are the starting points for understandingthe problems of China especially the problem of Chinese legal system.In order to solve and eliminate these dilemmas, the Article imports theconcept "legal identity". Based on belief, emotion, custom and rationality,"legal identity" is an important approach to reconsider the deviation of factagainst rule and legal system against legal spirit caused by thetransplantation-legislation. It is also argued that legal identity should beachieved through the games between ruler and subjects, elites and citizens aswell as the endeavor of the legal profession community.