On The National Spirit Of Law From The Perspective Of Jurisprudence

As the most common form of human beings'existing, nation has cultivated many ideas, values, psychology, moral standards and cultural traditions during its development. All these taken into account, the national spirit showcases a kind of internal dynamic which has a great impact on language, art, religions and even the origin of law together with its development. Resulted from the development of Geisteswissenschaften in 18th century, the national spirit was firstly come up with by western scholars in Europe. Representative of Giovanni Vico, Montesquieu, Hegel and Savigny, the historical school of law interpreted and analyzed the relationship between the national spirit and law from different perspectives, ending up with various viewpoints and theories. From the perspective of jurisprudence and through a relevant investigation, this dissertation makes a research into the interactive relationship between the national spirit and law. Hence, through an analysis on the relationship among national spirit and the spirit of law, the culture of law, the operation of law and the transplantation of law, it discusses the national spirit of law itself as well as the approaches and process when the national spirit is operated. And then it explores the connotation of the traditional national spirit in Chinese law, emphasizing the characteristics of national characters. Meanwhile, it carries a discussion about how to cultivate a contemporary national spirit of Chinese law and how to promote and propagate the construction of rule of law in China under such competitive circumstance.This dissertation is divided into four parts.The first part analyzes the general concept of the national spirit, that is, it studies the European social background in 18th century when the national spirit appeared, the developing approaches along with the literature review of the national spirit. Moreover, it demonstrates the conceptual divergence of the national spirit at home by analyzing different national spirits in academic researches and in education propaganda. Thus, it makes preparations for a coming analysis of the national spirit of law.The second part emphasizes the national spirit from the perspective of jurisprudence. Different western thinkers held different opinions toward the national spirit of law. As far as Savigny is concerned, he was the most authoritative representative of the historical school of law, whose point "law originated from the national spirit" challenged rational natural law and guided people to investigate his nation and its history. In addition, it gives a brief definition of the national spirit of law and analyzes its characteristics. Furthermore, it tries to broaden the legal dimensions of the national spirit, to explore the interactive relationship between law and the national spirit from the angle of the spirit of law and to dig a deeper legal connotation of national spirit.The third part deals with the national spirit in Chinese traditional law. In order to cultivate and propagate a national spirit in contemporary Chinese law, it demonstrates that the national spirit in Chinese traditional law includes spirits of the natural law, patriarchal ethics and criminal governance by refining the peculiarity of Chinese nation at the theoretical level.In the fourth part, it focuses on that China should not only cultivate and propagate a national spirit of patriotism but also construct the rule of law of Chinese nation, especially when it is confronted with the duty to sublate the national spirit in Chinese traditional law, to guide the common people to establish and promote the modernization of the rule of law and to stimulate the international competitiveness.In conclusion, this dissertation carries a historical, comparative and national research into the national spirit from the perspective.of jurisprudence. It indicates that the interactive relationship between law and the national spirit is not confined to Method of ontology. The progress of the spirit of law and the culture of law calls for the participation of the national spirit. At the same time, it showcases that the cultivation and propagation of the national spirit is not restricted to the patriotism. The construction of national rule of law is a crucial companion of the economic growth and the social civilization in a modern society.