Domestic Disciplines, Clan Regulations And The Construction Of Legal System In Modern China

Based on the visual angle of case study, this paper will state that the enforcement of rule by law of a country, not only depends on the progressing apparent conditions of officials including the national legislation and judiciary from top to bottom, but also, to a large extent, depends on unapparent standard conditions of the traditional mind and culture in folk society including domestic disciplines, clan regulations, village rules, nongovernmental agreements and religious laws and regulations which the common people defend tenaciously in their minds for a long time. It is just like what Mr. Tian Chengyou worte, "The source and basis of the rule by law lies not only in the country, but also in the society. Without the support of the spontaneous order which originates internally from social lives, the national laws will possibly be lack of solid fundamental theories, and a reasonable and rational order will be difficult to form". During the past century, the construction of China's legal system has made some achievements. However, the procedure of the construction of legal system really walks with difficulty. Generally speaking, a good order of a society ruled by law has not been shown, and even essential issues have not been resolved. There are many reasons, among which nongovernmental rules including domestic disciplines and clan regulations which have played important roles in Chinese history of thousands years and their own particular features still maintain their significant positions in modern China, especially in the broad rural social lives. In addition, functions they have are hardly substituted by laws set by the country. It will be useful for the construction of China's legal system to properly treat the traditional legal resources of China.This paper is composed by four parts. To begin with, the first part demonstrates that domestic disciplines and clan regulations had the name of "Little Constitution in Family" in ancient China. Acting as quasi-laws, domestic disciplines and clan regulations have gradually been the indispensable strong supporting control tools of the government in order to regulate nongovernmental actions and maintain the social order. Moreover, they became the significant complement of national laws, which owned a position of "Noble in Legal Officials" in ancient society of China. Through related case analysis, the second part illustrates that domestic disciplines and clan regulations still exist and are playing practical roles which cannot be neglected in modern China. Furthermore, current dilemma and causes of nongovernmental laws in the process of the construction of China's legal system will be significantly analyzed. Next, the third part states the rationale of the existence of nongovernmental laws and regulations such as domestic disciplines and clan regulations in modern China. Last but not the least, the forth part demonstrates the ways of eliminating the dilemma between national laws and nongovernmental regulations including domestic disciplines and clan regulations in the construction of China's legal system. In addition, it will be illustrated that the construction of China's legal system must stand upon the actual basic national conditions, in which the function of national laws as the main channel can be realized and the rationale of the existence of nongovernmental laws and regulations such as domestic disciplines and clan regulations can be fully affirmed. Moreover, it will be emphasized that the positive effects of nongovernmental laws and regulations including domestic disciplines and clan regulations in modern China, especially in the folk society, should be properly realized in order to settle conflicts and disputes and to maintain the social order. In that way, the complementary relationship between nongovernmental laws and regulations and national laws will be set up in order to establish and improve the modern legal system which fits the actuality of China, as well as to achieve the modernization of the rule by law and the harmonization of the society.This paper bases itself upon actual national conditions and practices of legal system and takes the establishment of the harmonious society as the fundamental starting point. In addition, adapting the method of legal sociology, this paper reexamines current situations of the construction of China's legal system with the scientific developing view and sees from the angle of the vast rural society in order to analyze the effects of domestic disciplines and clan regulations as social regulations among the people on present situations and social development in the future.Based on objective and real first-hand data, this paper analyzes the dilemma the construction of China's legal system is facing. In addition, the main stream in the process of the construction of China's legal system at present will be affirmed and existing issues will be found. Furthermore, this paper fully illustrates the rationale and positive effects of the existence of domestic disciplines and clan regulations in modern China in order to open and enlighten useful thinking of issues in the construction of legal system in modern China.