中国法律早期现代化的保守性价值评析

对如何评价中国晚清修律中保守性价值问题进行讨论。对晚清时期中国社会的法律价值重新评价,与西方国家法律现代化进行比较,考虑近代中国国家和民族的政治功利性,考虑民族心理,考虑当时的历史背景、学术水准以及东方国家现代化的共同规律,认为中国早期法律现代化中包含某些保守性价值是具有历史合理性的存在。

Analyzing on the Legal Conservatism of China in the End of Nineteenth Century

We consider that we ought to analyze "legal conservatism" as it exists in China in the 19th century. Traditional Chinese law paid inadequate attention to the individual, but paid more attention to social benefits. Introducing western legal practices, for example, practices designed to protect individual rights would destroy much of Chinese legal tradition. In China, a modern legal approach to reform, similar to what happened in the West in the 19th century has not been established. This means that the opportunity to discuss attitudes to radical approach on the base of individualism does not arise in this country. We should pay close attention to the background which must be considered while introducing a modern legal culture, for example, and the most important, the ethical element to this introduction. We should respect tradition. Where there is overwhelming force in traditional ethical values, no new law should be applied. It does not deny the value of law reform, but if it cannot solve the contradiction between legal systems and the reality perceived by the guardian angels of culture and society, then any law reform is doomed to fail.