The Development Of Social Change In The Legal Tradition

The historical development of legal tradition in social vicissitudes has its own laws, and we should notice these laws when we construct the ruling-by-law in contemporary China.In the introduction of this thesis, first of all I explain the legal tradition and social vicissitudes. In the essential meaning the legal tradition is the background in which the realistic law exists. It is manifested as legal institution, legal concept and legal thought etc. In the meanwhile, social vicissitudes is the change of a social economic structure at the fundamental aspects, that is, the transform of pattern of material produce in a society.The first part named law's tradition and traditional law. The law in the legal tradition is mainly customary law, therefore the origin and development of the law is the development process from customary law to formulated law. The legal tradition and formulated law have been close related, only in modern society formulated law becomes popular legal form however, it also stems from customary law. So the influence of customary law on form and development of legal tradition is very important. During the forming of legal tradition customary law have two functions, that is, the emerge of customary law marks the forming of legal tradition, meanwhile customary law set the fundamental category and essential factor of legal tradition. In this part, at last I compare the traditional law and modern law, and even if formulated law becomes the popular legal form in modern society, but we should not neglect the function of customary law in modem society.The second part narrates the historical development of legal tradition in western social vicissitudes. In this part, I also divide it into four points. Firstly I narrate three important social vicissitudes in western history from primitive society to modern society concisely, which is divided by means of changes of economic structure and changes of superstructure that decided by the form. Secondly I narrate the development of legal tradition in western social vicissitudes in detail, this development process is divided into several phases: (1) Western legal tradition comes into being initially inGreece-Roman Ages, (2) The succeeding development of western legal tradition in Middle Ages, (3) Western legal tradition are being perfected from the Renaissance to contemporary era. I discuss the influence of culture tradition on legal tradition and its transference, specified legal tradition is formed under specified culture background. There have been the motive and halting influence which culture tradition bring to bear on legal tradition. At last the influence of political element and economic element on the changes of legal tradition is very important either.Corresponding to the second part, the third part narrates the historical development of legal tradition in Chinese social vicissitudes. Firstly I narrate three important social vicissitudes in Chinese history from primitive society to modern society concisely. Secondly I compare the social vicissitudes in last years of Qing dynasty and the two social vicissitudes that happened before Qing dynasty. The reform that the social vicissitudes in last years of Qing dynasty exert on Chinese outmoded legal tradition is very great. It embody in four aspects: (1) It makes Chinese legal tradition "from status to contract", (2) It makes Chinese legal tradition from ruling-by-man of ancient age to ruling-by-law of present age, (3) It makes Chinese legal tradition from natural outlook to reasonable evolutionary outlook, (4) It makes Chinese legal tradition from sense to reason. In this part in the end I compare the development of legal tradition in western social vicissitudes and Chinese social vicissitudes, during the development of legal tradition in western society there have been a process of the negation of negation. It has been more variable and less continuous, on the country, in legal tradition of Chinese society, there has been more continuous and less variable.The fourth part of this thesis is the endi...