From Traditional Rule By Ceremony To Modern Rule Of Law

Foreign laws transplanted by Republic of China will inevitably have an impact on tradition. The problem about tradition and modernity is a particular topic that the scholars concerned about. Wang Boqi is an outstanding representative of jurists of the third generation in the twentieth century history of Chinese legal civilization and the first generation of legal scholars in Taiwan. His book "Modern legal tendency and Chinese natural culture" written in1956, reflect on legal practice in Republic of China and respond to the topic with the road of integrating western and Chinese culture. It is undoubtedly beneficial for the modernization in China to seriously analyze Wang Boqi’s thoughts." Modern legal tendency and Chinese natural culture" written by Wang Boqi is the object of this thesis, and it is the key of the study that the opinion of Mr. Wang about modernity in Chinese law and this paper is divided into four sections to be elaborated:Chapter One is the view of Mr. Wang on traditional rule by ceremony and modern rule of law. The substance of dispute between confucianist and legalist is the argue between rule of morals and rule of law. The contest of "Li" and law opened a real argument between rule of morals and rule of law in modern China,and it is in the entangled contest that why the rule of law is just became a question that each arguer can not quit answering. The practical reason of persisting rule of law by Wang Boqi is political support of legal reform in Republic of China, and the theoretical reason is the properties of modern civilization of the rule of law, and prosperity in China must be released from backward culture of pre-modern society to accept the modern culture of rule of law.Chapter Two is the gap between traditional and modern legal culture. Legal tendency swept through the twentieth century was mistaken by the scholars and politicians in Republic of China as social standard is the negation of the individual standard,so that "seamless" saying became popular. Wang Boqi, being aware of the risk, strongly pointed out that there was difference between the culture of rule of law and traditional culture of confucianism on legal value and legal method, that is the difference between standard of right and standard of obligations and whether is the emphasis on logic.Chapter Three is the opening from traditional rule by ceremony to modern rule of law. It must recognize the reality of the legislation in ahead and needs "legal teaching" to enlighten the people, and the most important initiatives is the development of independent personality and strengthening the ability of logic of law-executor. It is necessary to highlight the important role of the "person" in legal education, so that legal students could clearly understand the importance of unindependent personality, particularly, professors of civil law should pay special attention to the meaning and status of "person". The maintenance of logical system needs autonomous legal methods and legal occupational groups.Chapter Four is the comparison between Wang Boqi and Pound. The attitude on the tendency of socialization of law and free law between Wang Boqi and Pound is different. They are similar to the recommendations of Chinese legal modernization and they both paid attention to the role of the legal professional groups. However, Wang Boqi had better understanding of the situation of judicial practice and legal education than Pond. So his proposals are more in line with China’s actual situation than Pond.The traditional and modern theory is the just reason of the road of the rule of law in China, while lack of awareness of the difference between Chinese and western, is an obstacle to achieving the rule of law. The mixture of reasonable ingredients in traditional culture of rule by ceremony and advanced concepts in modern culture of rule of law and cultural integration, is the ultimate destination of the integration of western and Chinese culture by Wang Boqi. Independent personality and logical system can be said to be modernization of the person and autonomy of legal professional groups, and these are still our pursuing goal and provide us theoretical weapon of thinking about the current.