A Tentative Discussion For The Impacts On The Modern Legal System Under Traditional Legal Culture

Traditional legal culture is a general outline of the legal practice activities and results in China's long history. It includes the profound legal thinking and masses of people's law awareness in ancient Chinese. Also includes legal systems and facilities, which were inherited and evolved from generation to generation. Traditional legal culture mainly guided by Confucian thought, fusing with Legalists, Taoism and Buddhism1. This special kind of law spirit and system has affection not only on Chinese nation but also on Asian neighboring countries.1The Chinese Buddhism is the abbreviation of Shakyamuni. Since the period of East Jin Dynasty, the monks of Buddhism call themselves as the son of Shakyamuni, and tell others that their family name is Shi, also call the Chinese Buddhism as Shi Region.Although traditional legal culture is a historic deposit in China's long history, it still has its existing reason. At the same time, it plays a unique role in China's modern legal system. It is a historic and logic turning point, and the best of it has its alternative rationality. It is valuable. As a historic culture, it has a deep social basis, and embodies in folk's awareness of the law, psychology, habits, behavior and the course of life folk. In some certain way, it has become the belief or identity vector of members in the society. As a historical inertia mechanism, it formed the historic point of law development in our new social. Besides, the legal system belongs to legal and then the legal is not only a deposit of culture but also an important element. In a certain sense, new China's legal construction process is also a process that traditional legal culture to meet the challenges and renounce its own. So the critical interpretation of the traditional legal culture built the starting logical point of modern legal theory.The article has four parts here.Part-1 It concerns with legal culture and traditional legal culture. The explanations of culture are but a drop in the sea. These can be generally summarized up to three views: generalization,neutralization and specialization. For general, it includes all material and spiritual wealth created by humans. For neutral, it just includes ideology and concerning institutional and organizational facilities. Moreover, for special, it emphasizes on spirit like thinking, beliefs and values symbol, meanwhile it is a corresponding concept system. This paper provides a view that culture, acquired and imparted by people by using symbols is an action mode in the form of explicit or implicit. It is a constituent element in peoples'remarkable achievements that can be seen in the artifacts. The basic core of culture is a traditional concept derived and selected in history, especially in values. We can consider the culture system as deposits of human activities or hindrances of humans'furtherance. There are two crucial factors should be considered: on the one hand, culture appeared as an inalienable part of the whole community with a general social and cultural characteristics, on the other, considering the legal culture of self-development. Legal culture is a special culture came out with countries and legal systems'producing when human society entered class society. It is of different character with others. Legal culture continues its production, changing, communication, conflicts, differentiation and integration round and round the process of legal system's socialization. The process of legal culture's development synchronized with legal system's socialization. Therefore, legal culture is a compound, which has all the characteristics shaped around the legal system socialization process. For this concept, it must be made clear that legal culture is created by the whole human beings .Lawyers (Legislative, executive and judicial workers, legal assistants and legal education and research staff) play a lead role in this kind of creating. Legal culture is a result during the historical process of legal system's socialization and the foundation of the operating status of legal system's socialization. It has its own internal system and structure itself. That significance of the legal system cultural or the system of legal culture should not be ignored. It exhibits three different characters: developed public legal culture, combining ceremony and instrumentalism.Part-2 It is about investigating values and roles of traditional legal culture in modern society. The legal system does not only have modern legal system but also nativities. This is a demonstration of links between tradition and modern reason why we must be auction when we deal with the relations. It suggests that China's modern legal system is not a simple copy of traditional legal culture. Certainly, it was influenced by the traditional legal culture. Moreover, vice-versa .When inherits, transform, and modernize it, we should not abandon it in order to develop the modern legal system, and that is we must do some limited, some converted and some abandoned. Traditional legal culture is worth merit to be modern legal system. We should insist on valuing the impacts that the former took on the latter. Legal culture often has five functions: characterization, communication, selection, instruction and integration. The new development of traditional legal culture has two aspects: the first based on the loss of legal principles to detract from their own cultural traditions to update development gains, the second through the drawing , absorbing different ideas, changing different ideological and the traditional cultural forms to update the overall development. In a word, traditional legal cultural rooted in a nation and a people's awareness of the depths. It leads the modern legal system and cannot be prevented. This force constantly reminds us to pay attention to its role in the building of the modern legal system.Part-3 It is contention on cases, which were influenced by traditional legal culture and whether we should keep the death sentence, or not. In terms of study way, it is not far enough to explain how traditional legal culture impacts on the modern only from theoretical point, a better way are to select a model to discuss. Consequently, thinking from point of traditional legal culture, the author discussed the necessary or unnecessary of death penalty by standing the position of the death penalty's reservation. Hoping to clarify the impact way. This is a rare way in current theory of the status of academic research.Part-4 It is about inheriting and discarding of traditional legal culture in modern period. The author said we should call the relationship between Eastern and Western traditions as west of using when we are building China's current legal system. A public awareness of the law, absorbing personal-based thinking and to enhance awareness of civil rights, the main education, and establish leases concept, advocated the concept of procedural justice should be fostered when we integrate traditional legal culture. By humanitarian, the spirit of assimilation in traditional Chinese legal culture emerged the spirit of ruled by law to enhance the sense of human rights by moral education, develop the usefulness and discard useless to the traditional legal culture by establish the legal system way for guarantee human rights earnestly.