Can The New Order Be Constructed By Means Of Destroying The Tradition?

This thesis starts from the debate on adultery with husbandless woman(Wufujian in brief),aiming to reveal the process of legal transformation.That Chinese law and western law had opposite treatments on Wufujian marked the fundamental difference between the two legal systems.The traditional criminal law upheld the patriarchal ethics,thus imposing strict punishments on Wufujian.While the new criminal law aims to protect individual's freedom,showing mercy to Wufujian which produce no harm to others.Under the influence of the universal axiom prevalent in the early 20~thh century,the norms of Li,embodied in traditional criminal law,was regarded as obstacles to both evolution of society and wealth and power of China,thus it was necessary to be eliminated as absolutely as possible.That is why the Wufujian became one of the center heated topics during the enactment of criminal law in late Qing dynasty.During the debate about whether the Wufujian shall be punished under the new criminal law,the party of Fali argued that Wufujian shall no be punished because law made no difference to this kind of misbehavior.It was more effective to use educational measures to deter it.The party of Lijiao opposed the elimination of Wufujian,basing its argument on the presumption that law must be in tune with particular social conditions within one nation.Fali appealed to the axiom of evolution and western legal thoughts in order to legitimize its arguments,which viewed the debate as a critical element mattering the destiny of China.In contrast,the party of Lijiao showed anxiety for disastrous impacts the elimination of Wufujian might have on social order,on one hand;and asserted that law should accommodate the customs of particular nation,on the other hand.As far as the gap between ideal law and social reality,there existed two opposite legal thoughts.Fali pursued ideal law which was beyond the current social conditions,believing that the society could be remodeled by the ideal law.Contrary to this,the Lijiao opposed the ideal law supported by Fali,and asserted that law should be in harmony with the concrete social situations of particular nation.Correspondingly,there existed two different opinions concerning the justification of new criminal law.Fali regarded China's wealth and power as the supreme goal of enacting new criminal law.While Lijiao insisted that law would lose its justification if it contradicted with domestic morality.After investigating the Fali's argument about eliminating the Wufujian,we can see that Fali actually based its reasoning on theory of The Shool of Criminal Sociology.The theory of Educational Punishments provided the main theoretical resource for Fali to enhance its arguments.The reason why the Educational Punishments was welcome by Fali and was applied to the reformation of criminal institutions was it possibly met the plan of remodeling the Chinese articulated by intellectuals in the early years of 20~thh century.However,neither the contents of Educational Punishments nor the way in which it was understood and applied conflicted with the doctrine of the Separation of Law and Morality flagged by Fali.The Educational Punishments allowed for law's interference into the moral sphere,while the Separation of Law and Morality aimed to defend a private(moral)sphere against the interference from the state.On the other hand,the application of the Educational Punishments to remodel Chinese violated the doctrine of separation as well.The theory of Educational Punishments initiated by Fali was applied to the reformation of criminal institutions.Furthermore,it meant a new kind of governing mechanism was coming into being beyond the criminal institutions.The role played by family in educating people was replaced by state.The individual thus was under the direct control of the state.In the debate concerning Wufujian,both initiative of the separation theory and application of the theory of educational punishment hinted Fali's revolutionary intention of destroying traditional Lijiao and erecting new morality.However,that some member of Fali self-examined their thoughts in period of Minguo hinted not only had not the new morality been established,but also had the traditional moral criterion been sweepingly devastated.Fali's philosophical approach of rational constructivism on law needs to be rethought profoundly.