| Human beings have evolved over millions of years,and the genetic gene of living things is not easy to be changed in this constantly changing world.The legal culture gene is also the same.For a renascent national state,people’s material information life style and social organization form may change greatly with the times,but the genetic gene of the legal culture is hard to be changed qualitatively after hundreds of thousands of evolutions.Since the eastward spread of western law,due to the establishment and perfection of norms,the positivism legal concept has gradually been accepted.Perhaps,the formal rationality implied in it is effective in solving the external disputes.However,this is far less concrete and less warmer than the ethical rationality(physical rationality)grown in Chinese traditional legal culture as a soft console for the minds order.The concept of Sentiment-ethics-law is the representation of the cognitive style of ethical rationality(physical rationality)nourished by Chinese traditional legal culture,which demonstrates the characteristics of Chinese ethnic group’s realization of substantive justice through reasonable considerations in the running process of the law.The concept of Sentiment-ethics-law stemed from self-sufficient small-scale peasant economy,and originated from the judicial requirements of ancient China.It showed us the cultural pattern of the law of traditional Chinese society,which was once very colorful and has been deeply marked in every Chinese people’s mind and has been down to our bone.China is now in a period of social transition to revitalization.In contemporary China,the conflict between traditional legal concepts and modern legal concepts,the maintenance of the right of survive and develop,and the arrangement of Chinese life order are the social realistic situation of the people in contemporary China,and are also the most important objective conditions of the people.This makes us be in an urgent state of desiring for the rule of law.Which type of legal meaning(the legal culture spirit)needs to be used to sketch the picture for this desired state is a theoretical problem.The concept of Sentiment-ethics-law can fully embody the legal meaning(the legal culture spirit)with Chinese characteristics.First,it embodies the common psychological attitude and behavioral response of Chinese ethnic groups to rules,laws,authority and order.Secondly,it reflects the style(pattern)of life or behavior that is most closely related to the Chinese ethnic group and law,which can also reflect the legal and cultural choice of the Chinese ethnic group.Thirdly,it embodies the common legal value concept of the Chinese ethnic group,which is human feelings based on sentimental law and the balance between sentiment and law.Only by thinking and solving China’s realistic problems and life problems with the national legal and cultural spirit can we realize the true vision of the rule of law.This is the cultural thinking of the concept of Sentiment-ethics-law interpreting from the legal culture dimension.This paper is divided into five parts.First,the historical logic of the concept of Sentiment-ethics-Law.A state cannot be established without laws,and people cannot settle down without laws.According to Mr.Zhang Jinfan’s opinion,the original idea of Chinese law is earlier than that of western law.China formed the concept of rule of law three thousand years ago,and it has been passed down until now.Just because the mode of legal thinking is different,the legal life and the behavior patterns are also different.The western mode of positivism thinking is based on the formal cognitive rationality,while the Chinese legal thinking mode is based on ethical cognitive rationality.Therefore,the Chinese traditional legal landscape presents the characteristics of the confucianization of the law,and the legal cultural genes of Sentiment-ethics-law are deeply imprinted in the legal activities and behavior patterns of Chinese people.According to the idea of governance by law in ancient China,the historical deduction process of the Confucian law,and the display of reasonable consideration of checking justice and estimating human feelings from the legal activities of governance by law in all dynasties,we can realize that the ethical rationality of Chinese people is the source of the intrinsic theoretical basis of the law for Chinese inethnic group motivation of the law.Second,the intrinsic implication of Sentiment-ethics.Factual description on the intrinsic implication of Sentiment-ethics-law is an important prerequisite for cultural analysis on the concept of Sentiment-ethics-law.In contemporary China,there are many opinions on the intrinsic implication of sentiment and ethics.By combing its pedigree,we can describe the intrinsic implication of sentiment and ethics from two aspects.The first is to separate sentiment and ethics and then analyze their connotation respectively;The second is to regard sentiment and ethics as a compound word and then analyze the relationship between sentiment and ethics.The intrinsic implication of ethics is that it contains the ethics of natural law and the ethics of humanity.Justice is the largest,the highest and the earliest concept in Chinese people’s inner morality.Justice,the natural law of the ethics,is a eternal natural rule,while ethics is the principle of human beings.Of course,justice is human relations and is the ethics as well.The ethics of humanity includes principles,theorems,axioms,and the truth mentioned from the angle of the demonstration program.By referring to Professor Wang Xigen’s analysis of the ethics and Professor Zhang Weiping’s interpretation on rule of thumb,the author thinks that the ethical framework of traditional society is the principle of that time in the legal sense,which is the presupposition of political law at that time.It is certainly the legal principle which is the same as the principle of the contemporary political law.Theorem is determined by specific countries according to their own practical experience and local practical experience,which is the jurisprudence of the national characteristics,and is certainly the legal principle;Axiom is the public consciousness at the level of effectiveness,generally appeared together with theorems as common sense and common thinking(common feeling).According to the regulations of supreme people’s court,all the empirical laws should be carefully analyzed and be logical to be discreetly applied,except for the certain natural laws which is the original axioms with the highest decisiveness.However,truth is the internal basis and reason of the things embodied in the process of argumentation.During the demonstrating process,it is necessary to make in-depth analysis on the truth,which needs higher requirements for the basic quality of judicial officials.For the intrinsic implication of the sentiment,Professor Wang Xigen’s comprehension on the sentiment is mainly presented.However,Professor Lin Duan divided sentiment into subjective and objective aspects,which is not the same as Professor Wang’s opinion.The objective aspect of the sentiment can be referred to as situation,which is divided into generalized sense and narrow sense.The generalized situation,including the national situation,the social situation and the conditions of the people,is also known as the conditions of the people,the world situation and the public conditions;The narrow sense of situation is certainly the case,the plot and the situation.The subjective aspect of the sentiment includes public(private)volition and emotion.The private volition and the private emotion,is commonly referred to as human nature;With regard to public volition and public emotion,the public volition should be the common feeling which is widely used,and is synonymous with the common sense and the common thinking.What human beings can directly feel is the public sentiment,and it is actually a kind of public intuition for it is often expressed by public opinion,and therefore is also called as public opinion.This is the emotion of the public,which is based on the feeling of a temporary and accidental event.As an objective conditions of the people,it refers to the basic situation and circumstances of the public in a certain period of history.These two conditions of the people are often be mixed up.When Sentiment-ethics are used as a synthetic word,it is often compared with jurisprudence.After more than 100 years of hard work,especially for the rising of social facts and positivist jurisprudence in the late 40 years,it is true that China’s legal modernization has started.This modernization is now on the way between Sentiment-ethics and jurisprudence.Professor Sun Xiaoxia and Professor Fan Yu expressed their concerns to this lingering,while Professor Xie Hui clearly opposed to the opposition of sentiment and law(or the duality of sentiment and law)and suggested that sentiment and law should be blended together.In fact,only the integration of sentiment into law and then the connection between ethical rationality and formal rationality is the direction to achieve substantive justice.Third,the contemporary value of Sentiment-ethics.Professor Wang Xigen believes that legal history is not only the history of norms and systems,but also the history of cultural and value changes.The excavation and sorting of the value of sentiment and ethics is very important to reveal the intrinsic connection between the elements with Chinese national characteristics having a specific role of reference and the nature of the survival mechanism of our nation.Ethics discussed and analyzed in this paper is the highest category of law belief of justice associated with consciences,and is the axioms and theorems generally appearring as common sense and common thinking(common feeling).The natural law of original axioms and theorems have direct legal effect.Thus,empirical laws needed to be justified and specified in axioms become the focus of discussion and analysis.Sentiment discussed and analyzed emphatically in this paper manifests as ecological mechanism of public sentiment which appearring as public opinion or national public conditions.The exploration of the contemporary value of Ethics is represented by Chen Zhonglin’s concept of Sentiment-ethics-law,which takes common sense,common thinking and common feeling as the soul of the modern rule of law.The exploration of the contemporary value of sentiment is mainly about the view of Professor Gu Peidong’s public sentiment and Wang Renbo’s viewpoint of the public opinion.They deeply analyzed the value of the subjective public emotion in contemporary society.Fourth,the cultural analysis of the concept of Sentiment-ethics-law.Based on the Professor Liang Zhiping’s theory of legal culture interpretation and Professor Fan Zhongxin’s three research thoughts of legal history,this paper tries to make a cultural analysis of Sentiment-ethics-law in contemporary China from three aspects.First,it is important to understand the cultural concerns of contemporary legal scholars,including social experts,to share psychological attitudes and behavioral responses in the process of legal activities of Chinese ethnic groups,and to summarize their laws and characteristics.Learning from Mr.Fei Xiaotong’s theory of differential pattern and Professor Wang Sibin’s deeper analysis of the order pattern,these laws and characteristics are action selection of social situation based on traditional differential pattern.Second,we should deeply understand the patterns or modes of life or behavior that are closely related with Chinese ethnic group and the law in contemporary law community.Three aspects of cultral thinking should be intensively considered,including Professor Fan Zhongxin’s thought of taking Sentiment-ethics-law concept as dominant legal concept,Professor Yu Ronggen’s thought of taking this concept as the cultural character of the Chinese ethnic group and even as the whole legal history.Third,we should deeply understand the core concept of legal value in the legal thoughts of Chinese ethnic groups,which has been summarized by Professor Huo Cun fu and Fan Zhongxin.That is the contemporary meaning of human feelings based on the sentimental law and the balance between sentiment and law.Fifth,the growing direction of the concept of Sentiment-ethics-law.The growing point and growing direction of the concept of Sentiment-ethics-law must be based on the social reality.That is,the conflict between contemporary Chinese social tradition and contemporary legal concepts,the maintenance of the right to survive and develop,and the arrangement of Chinese life order,are the social reality situation of contemporary Chinese people.A comparative analysis was made on deeper thinking of Professor Zhu Suli,Professor Gu Peidong and Professor Xu Zhangyun on China’s spirit of law(legal cultural spirit).Summarizing the viewpoints of Mr.Zhang jinfan,Professor Zhang Zhongqiu,Professor Yu Ronghen and Professor Xu Zhangrun on how to achieve the consensus of facts,rules and legal ideas,their unanimous opinion is to use Chinese people’s own national characteristics of the law,to focus on China’s life problems with Chinese law thinking,to solve China’s real problems,and to arrange the life order of China properly.The growing point and growing direction of the concept of Sentiment-ethics-law is to realize the ideal of harmonious law using the mode of the moral humanistic rule of law,and to firm the confidence of the rule of law and the legal culture.Professor Zhang Wenxian and Professor Zhang Zhongqiu proposed the ideal design of harmonious method characterized by good law and sound governance.The ideal theory and practice mode of harmony is the moral humanistic rule of law,which is also the ideal model for Chinese ethnic group to realize the confidence of the rule of law and the confidence of legal culture.Professor Yao Jianzong,Professor Zhao Xiaogeng and Professor Hou Xinyi’s thought is based on the opinion that the inner mechanism of law is the important theoretical basis of good law.Professor Chen Lin Lin’s logical argument based on the principle of universalizability and the rule of thumb is the important premise of sound governance.These two aspects have laid a solid foundation for the ideal design practice of harmonious law characterized by good law and sound governance.In a word,the path and mode of the integration of ethics and law should be further discussed.However,there is no doubt that the concept of Sentiment-ethics-law in China is a kind of legal culture spirit based on ethical rationality.It reflects the psychological attitudes and behavioral responses shared by Chinese ethnic groups during legal activities.It is the style or pattern of the life or behavior of Chinese ethnic group closely related to the law,and it embodies the core idea of legal value of human feelings based on sentimental law and the balance between sentiment and law in the legal thoughts of Chinese ethnic groups.It can be connected with the formal rationality of positivism legal concept,and can realize the integration of the facts,the rules and the laws.The growing direction of the concept of Sentiment-ethics-law is to pay close attention to China’s life problems using the spirit of Chinese law,to solve practical problems in China,and to arrange the life order of Chinese people.Thus,the good vision of ideal design for harmonious law can be achieved,and the confidence of the rule of law and the legal culture can be realized in contemporary China. |
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