Reflection On The Study On Chinese Law Of Weber

The study on Chinese law of Max Weber and Weber's propositions on Chinese law have been having a profound impact on Chinese scholars.Scholars at home and abroad either start from empirical research based on historical data,or from Weber's theory itself,or combine the first two approaches,and have discussed and pondered a lot about Weber's theory and Chinese law propositions.Weber's characterization of traditional Chinese law is: A kind of "substantive irrational" "Khadi justice" under " patriarchal and bureaucratic system".Concretely speaking,"patriarchal and bureaucratic system",as the framework of the traditional Chinese political dominance structure,is the political basis of traditional Chinese law,and unfolds both "rational" and "irrational" characteristics at the same time.The traditional Chinese legal form based on the " patriarchal and bureaucratic system " manifests itself in the substantive pursuit of suppressing the formal value of the law,which is a case-balancing style of law,and which reflects the highly unpredictable "substantive irrational" Khadi justice.Weber's assertion of traditional Chinese law was falsified by the civil justice cases of the Southern Song Dynasty.The 186 civil cases in the Department of Civil Cases of Minggong Shupan Qingmingji involves four types: land cases,debt cases,marriage cases,and inheritance cases.More than half of these cases are land cases.Among the land cases,82.7% of the cases were judged strictly in accordance with laws and decrees,and only 10.6% of the cases were judged completely according to etiquette.In the total of 5 debt cases,although only one case was judged in accordance with the law,the judgment beyond the law is still predictable.The ratio of the judgments in accordance with the law and the ratio of the judgements beyond the law of marriage and inheritance cases are roughly the same.In short,the Southern Song civil justice in the Department of Civil Cases presents two highly differentiated aspects.On the one hand,there is a fairly predictable "substantive justice",on the other hand,there is a more predictable "decree justice".The "Khadi justice" assertion of Weber cannot explain the characteristics of the civil justice form in the Southern Song Dynasty.Back to Weber theory,because of the fundamental problems of the construction of the ideal types of Weber,and therefore the theory requires further revision and clarification.The theoretical construction of the ideal types of "substantive rationality" method and "substantive irrationality" method shows ambiguity and internal logical contradiction.The concept of "rationality" is naturally compatible with the concept of "form" which has logical,abstract and normative meanings internally."Substantive" means deviation from "rationality".The context of Weber presupposed that the "rationality" law must be the "formal rationality" law.Thus,no matter how "rational" the substantive legal form in other contexts is,Weber's conceptual framework cannot summarize it to the "substantive rationality" type of law.Relying on the theory of multi-contextuality of Niklas Luhmann exhibited by the "second order observation",the concept of "patriarchal and bureaucratic system" can identify the dual aspects of civil justice in the Southern Song Dynasty from a multi-perspective view,thereby breaking through the implicit implications of the construction of dualistic ideal types in Weber theory.From the perspective of academic standpoint,the reason why Weber's research on Chinese law produced wrong conclusion is that he has never escaped the attitude of negative orientalism.Weber called himself "the son of modern European culture".In a nutshell,the study of oriental civilizations,including the study of Chinese law,were just footnotes and objects to the reason why modern Europe with liberalized capitalism,modern rational bureaucracy,and modern legal systems with formal rationality is special.From a methodological point of view,as a subjective nationalist and political activist in a modern sense,Weber held pride in the German nation and European culture,which also limited the choice of materials in Weber's Chinese law study in the sense of value linkage.