ON THE COMMUNICATION OF LEGAL CULTURE AND THE SUBJECTIVE CONSCIOUSNESS OF CULTURE
　　TABLE OF CONTENTS

　　I. The NECESSITY OF LEGAL CULTURE COMMUNICATION …………………………………………33

　　II. The SUBJECTIVE CONSCIOUSNESS OF LEGAL CULTURE EXCHANGE …………………………………………34

　　III. The FORMS OF LEGAL CULTURE EXCHANGE 37

　　A Legal Borrowing…………………………………………37

　　B. Legal Reception…………………………………………38

　　C. Legal Transplant…………………………………………41

　　D. Legal Integration …………………………………………45

　　E. Legal Interflow…………………………………………46

　　IV. The CHOICE OF LEGAL CULTURE COMMUNICATION FORMS AND ITS IDEA FOUNDATION …………………………………………49

　　A the Subjective Consciousness of Legal Culture…………………………………………49

　　B. The Issues of Legal Culture on Local Concepts and Local Knowledge …………………………………………50

　　C. The Superior Consciousness of Legal Culture…………………………………………51

　　D. The Issues of Legal Globalization and Universal Knowledge …………………………………………51

　　V. CONCLUSION …………………………………………53

　　ON the COMMUNICATION OF LEGAL CULTURE AND the SUBJECTIVE CONSCIOUSNESS OF CULTURE

　　Mi Jian

　　The development history of human society as a whole is actually a history of human communication. The communication in legal culture plays a significant role in all activities of human communication Over century's legal development and progress of China since the late of Qing Dynasty provide a meaningful example for the communication in legal culture of human society. However, the understanding and discussions of many problems in the academic field of Chinese law have been in a state of unawareness subject, that is, the state of lacking the subjective awareness of culture, which in large degree cause the fact that modem Chinese legal science or Chinese jurists have not entered into the legal culture communication of human as a subject of communication with awareness. In the history of world legal development, the communication in different legal cultures is realized through five forms of borrowing, succession, transplant, integration and combination. The essence of the communication in legal culture is relevance and transformation of reality and expected as well as regionalization and universality and an interacting process of developing from regionalization to universality and the universality is composed of regionalization. Without the subjective awareness of culture, it is difficult to set up the status of culture subject, to correctly understand and explain various forms and general regularity of the communication in legal culture and also to positively take part in cultural communication activities. As a result, it is even more difficult to correctly understand and ensure the construction and development of its legal system.

　　After the legal reform in the late Qing dynasty and the early People's Republic of China, a hundred years' legal development history in China shows processes of conflict, collision, adjustment and synthesis between the adopted law and the domestic law. Because of this, the legal history in modem China in fact is an authentic and abundant history of comparative law; because of this, the study of comparative law is significant for the development of Chinese law at present and in the future; and because of this, the subjective consciousness of culture and discourse power in the jurisprudential study are significant and indispensable. After careful observation, we can find that many important issues concerning theory and system in the development process of Chinese law have been influenced by the existence or the lack of the subjective consciousness of culture and discourse power to a certain degree. Many legal scholars may realize or feel that they are embarassed by the concept of “they are in others” at the time of emphasizing themselves, and this often happens in comparative law research. In the field of comparative law, many issues are solved by legal scholars under the state of unconsciousness that lacks the subjective consciousness of culture. As a result, it is difficult for them to clearly demonstrate the correct judgments for themselves and the relationships between them and others and establish their own discourse system. Strictly speaking, in addition to certain fields of legal science, most fields of legal science in China have not broadened in world influence, and Chinese legal scholars have not achieved the equal status with other countries' legal scholars in the process of legal globalization, harmonization and amalgamation. In fact, this situation happens not only in the jurisprudential circle, but also in the field of humanities and social sciences. We even can say that China was at a weak position in the cultural communications between China and Western countries during this hundred years' history, and not everyone has consciousness with regard to this difference in cultural communications. That is because the special historial environment in modem China has not led us to realize our dominant positions in the long-term, tangible or intangible culture exchanges. Some scholars have criticized that “Chinese legal science is not able to provide a ‘Chinese law picture ' as the standard and direction for evaluating, criticizing and guiding the development of Chinese legal system/law, and thus cannot lead the Chinese legal system/law to develop. The reason is that Chinese legal science has been dominated by the ‘modem western paradigm'.”{1}In order to solve this issue, it is necessary for us to summarize Chinese experiences of accepting foreign legal culture and promote the development process of our own legal construction, and find, establish and strengthen our own position, angle and thought as the dominant parties in cultural communications. In other words, we should become culturally dominant parties with full capacity for civil conduct or discourse capacity when entering into the world of culture exchange. As a consequence, investigating and analyzing the subjective consciousness of culture and discourse power are thus significant.

　　I. The NECESSITY OF LEGAL CULTURE COMMUNICATION

　　The nature of human beings determines that all activities in human society begin with communication, and the essential feature and content of all these human activities is culture. Human communication includes two parts, which are communication between human beings and nature and communication between human beings. The communication between human beings also includes individual and individual, individual and group, individual and society, society and society, nationality and nationality, country and country, culture and culture... etc. Although the forms of communication between human beings are ever-changing, all the natures of these forms are the same. As well-known American anthropologist Ruth Benedict points out, the interaction between the characters of culture sometimes happens and sometimes disappears, and the history of culture in fact is the history of these characters, fate, and their reations in certain aspects.{2}

　　In fact, we can find that the cmmunications of legal culture played an important role in the communications between human beings after investigating the development history of human law. In the process of the exchange between countries, a country's legal cultures such as legal philosophy, legal norms, systems and theories may gain influence on or are adopted and transplanted by other countries, or the law and legal systems between various countries influence, borrow, receive, integrate, and even interflow each other, and all these have been proven by the legal development history. The exchange thus becomes more significant than ever before with the development and progress of human society. Therefore, we can say that this communication has directly influenced the relationship between various countries and nationalities, the coexistence and harmony of international society, and the development and progress of human society in the future. Especially, communication seems more significant when the development of human society has entered into the times of globalization.

　　Generally speaking, in the communications between various countries, the economic communication will be carried out firstly and safeguarded by law. That is because the communication can only be regularized and safeguarded after entering into the state of legal communication. Therefore, legal communication is the most fundamental and important form of communication, its direct result is the syncretism of legal cultures consciously or unconsciously and thus the promotion of legal development. At the time of talking about the development of the Chinese legal system, American legal scholar Ellman points out that “it is extremely rare that modem legal systems in various countries never adopted and studied foreign experiences or modes. Nowadays, the increasing interdependence between various countries has expanded to the countries with different political ideologies, and this provides successful hope to the syncretism of legal cultures although it can not be guaranteed.”{3}In fact, the statement of Ellman is implicative. The historical experiences show that the whole development history of human beings is a syncretic history by the communication and exchange, and the syncretism and development are the basic rule of the develoment and progress of human society. From the perspective of anthropology, we can see that culture holds people together. In fact, any nationalities in the entire world can accept other nationalities' culture.{4}therefore, cultural exchange and syncretism are the themes of the development of human society.

　　As mentioned earlier, as one form of culture exchange, the communication of legal culture is significant for the development of human society. However, what are the substantial contents of legal communication? Simply speaking, this is the relation between the “actuality and expection” and “locality and universality”, and the issue of their cross-transfer. As British Utilitarianism philosopher Jeremy Bentham believed that “The actual law is different in various countries, but the expected law in various countries are the same in certain degrees. Therefore, the interpreters can only be the citizens in certain countries, but the reviewers can be or should be the citizens of the world”{5}In accordance with this opinion, we can draw a conclusion that the legal exchange of various countries in human society is, in fact, the path or process from locality to universality and the universality is consisted of locality; meanwhile, the purpose or result of legal exchange is the development from the individuality of actual law to the universality of expected law, and from the locality of actual law to the cosmopolitan development of expected law. At last, we should know that the substantial contents of legal exchange are to pursue the univers laity and maximization of expected law.

　　II. The SUBJECTIVE CONSCIOUSNESS OF LEGAL CULTURE EXCHANGE

　　The communication of legal culture refers to the process of interaction and interplay, mutual borrowing and study, and mutual integration and syncretism between various legal cultures. The methods and forms adopted by this communication and the conditions and environment required by this communication have always been discussed and been paid attention by both Chinese and foreign legal scholars, particularly the legal historiographers and comparative law scholars. However, the positions, opinions, judgments and conclusions of these scholars are different. The discussions of these issues are, to a large degree, led by Western scholars for a long time, and their discussions, influence on scholars in Eastern countries including China, Japan, India and countries in Southeast Asia is pronounced. Therefore, in the process of researching and discussing the legal cultures in Eastern countries, many scholars just consider and observe the issues on the basis of Western positions and demonstrate and elucidate the issues through Western languages. In other words, the issues of the communication of legal culture in Eastern countries has been understood and discussed on the basis of Western positions and existing opinions. As a result, it is inevitable that the research on legal cultures in Eastern countries follows the languages and routes of Western scholars unconsciously and cannot participate in such research as an independent cultural subject consciously.{6}For example, at the time of discussing whether one country is to adopt and study another country's legal system, Eastern scholars, especially Chinese scholars, have been influenced by Western scholars for a long time and therefore show that they are collective subjects of the unconscious. With regard to the discourse power with subjective consciousness, the relevant works are very limited. Therefore, it can be said that only the research carried out by Japanese comparative law scholars Masao Oki and legal anthropology expert Masaji Chiba represent Eastern scholars' in-depth and independent considerations in this academic field. From the standpoint of Eastern scholars or scholars in non-Western countries, Masaji Chiba deems the formation and development of legal cultures in the whole human society as his object of research, analyzes the existence and development forms of human society on the basis of subjective consciousness of non-Western scholars, and attempts to surpass legal science in Western countries.

　　The academic realm of Masaji Chiba is established due to the fact that he realizes the jurisprudential study in the world has been led by Western legal languages and consciousness for many years, but other Eastern scholars more or less ignore this phenomenon. Masaji Chiba clearly sets forth “to surpass legal science in Western countries”, and points out “with regard to correctly understand(ing) the situations in non-Western society, the general way of deeming non-Western law and society as ‘traditional' in order to compare with ‘modem' Western law and society is too simple.” In addition, this way is even developed to take “common law or American law” as output mode, and the undercurrent of “legal imperialism” emerges. Therefore, he clearly criticizes the dichotomy of “tradition and modem” which is corresponding with the legal cultures in both East and West, incisively realizes the theme of “modernization” ignores Western cultures, and believes this is an invalid method or theory.{7}

　　Masaji Chiba ' s novel opinion on ways of thought is also his theoretical hypothesis for the “identity of domestic laws” or “identity of legal cultures". In fact, the establishment of this hypothesis is the reason why he can carry out the specific research of “tripling and dichotomy”. The unique contribuion of Masaji Chiba's research achievement is that he points out nationality, country and law as a whole is multiplex and thus has triple structure including official law, unofficial law and postulate, and all laws in a country consist of these three parts. He believes that official law refers to all laws enacted by the authorities with the power of legislation in a country, and national laws are typical official law. The second level is unofficial law, which refers to laws enacted by the authorities without the power of legislation in a country but recognized by certain public class and implemented in practice, whether onshore or offshore. This general recognition may be acknowledged and expressed by certain forms consciously or observed by certain conduct unconsciously. The third level is postulate, which refers to the value principle and value system associated with certain official law or unoffical law. They have the functions of finding, adjusting and locating the latter. Later, he further develops his theory to the theory of “triple structure and dichotomy of multiplex laws”. The contents of this theory, which he also called the “ultimate theory”, further explain the existing forms and correlations of multiplex laws on the basis of his triple-structures theory: “offical law and unofficial law” in the first structure are involved in “legal norms (empirical rules) and legal doctrines (principle of value)”and “inherent law and adopted law”. His opinion impacts the traditional method centered around Western' law and provides good examples for Eastern scholars to consider the development issues of their own legal systems.{8}

　　On the one hand, Masaji Chiba "s unique theory enlightens us, especially Eastern scholars, to understand the legal composition in a country and to analyze the constituent elements and the law of development of domestic laws, but on the other hand, he has also left room for discussion. For example, his triple-structures theory is not very precise because his theory does not distinguish the differences between law and legal culture, which are also the differences between building and foundation. The issues here are naturally involved in how to understand the nature of law and how to explain the form and occurrence of the nature of law. Most importantly, although he puts forward the triple structures and dichotomy, and substantially explains some basic issues in the development process of the formation of legal culture through analysis such as the adoption of law and the interaction between different laws or legal cultures, he still does not find or put forward the legal interaction and development path, which should correspond with his theory. Specifically speaking, he uses Western scholars' discourse “adoption” to summarize and analyze different legal evolution developments in different levels all the time, but legal culture communication and exchange and the paths of legal development and progress cannot obviously be summarized by only adoption. This deficiency has a bad influcence on the persuasion of his theory.

　　As a summary, the subjective consciousness is very crucial for discussing the issues of legal culture exchange. The important reason why we cannot achieve clear and satisfactory answers or draw an accepted conclusion at the time of discussing such issues is the lack of subjective consciousness.

　　III. The FORMS OF LEGAL CULTURE EXCHANGE

　　From the perspective of history, especially the development history of modern law, the law or legal culture exchange between various countries normally has five types, which are borrowing, reception, transplant, integration and interflow.

　　A. Legal Borrowing

　　Legal borrowing means that a country consciously studies certain individual systems or rules in other counties in order to improve and develop its own legal system.{9}This is the most basic, common and normal path for the development of law and legal culture. Legal borrowing normally occurs individually and therefore has the characters of pragmatism. In other words, it occurs between individual systems and rules casually and randomly and therefore does not need integrated planning and occurs without the force or organization of public power. In most cases, the purpose of legal borrowing is to solve a practical issue or find a good method for solving legal issues. Therefore, the legal issues solved by legal borrowing are normally technological and methodological issues, such as the principle of fault liability or no-fault liability in civil law, anticipatory breach of contract and uneasy counterplea in contract law, methods and principles of protecting customers, relevant systems and rules of company law and securities, constitutional theory in criminal law, legal clinic and plea bargain, rather than the deep-rooted issues concerning legal culture. Both history and reality have proved that the legal culture exchanges between various nationalities and countries are very common. They can occur between various countries, various legal systems, common law and civil law, and Eastern law and Western law.{10}In practice, this can be achieved from foreign law to domestic law, such as from Roman law to French law ad German law, from Japanese law to Chinese law, and from French law and German law to Japanese law.{11}With regard to legal borrowing and study, it is a normal development path and there is thus not too much controversy surrounding it in academic circles. In fact, we should know that legal borrowing occurs all the time.

　　B. Legal Reception

　　Legal reception refers to when a country, in accordance with its domestic situation, voluntarily, designedly and purposefully adopts the legal system of another country after interpreting, identifying, choosing, adjusting and systematising. Legal reception has been normally shown by the blending process between the domestic legal system and autonomous and active culture development, and therefore will not influence the status of nationalities, countries and regions as autonomous subjects and their inherent systemic values. In other words, legal reception does not weaken the status and value of adopting countries and therefore is a objective and neutral method As German legal scholar Knut Wilfgang Noerr thus points out, “The most fascinating matter in the relations between various countries is not only the physical good but also knowledge, experience, opinion and thought. In fact, the constitutional elements of all cultures and civilizations can be transplanted from one country to another country and from one continent to another continent, and law is no exception. The articles and systems of law in fact are conceptions of humanity and therefore should not be restricted by boundaries. In fact, the phenomenon of transplanting and receiving foreign law is as old as law itself, and occurs recurrently. We have seen the large-scale legal reception in this century.”{12}In addition, Noerr not only emphasizes the reception of law; as the cultural elements have the characters of universality and regularity but also explain the deep-rooted reasons of legal reception. At the same time, he also has different cognitions on this phenomenon from different angles. With regard to legal reception, French legal scholar Rene David further states that “in some other countries that were not governed by the countries in Western continent but their requirements of modernization or desires of westernization were permeated by European countries, a phenomenon of receiving voluntarily resulted in the same consequences.…outside Europe …many countries ‘received' European law. However, before receiving European law, there were civilizations in these countries, including the behavioral patterns of solving problems and being a good person and some institutions. Therefore, reception can only be partial, and many fields (especially ‘law of identity')were still dominated by traditional principles. In addition, the old behavioral pattern of being a good person made the implementation of new law different with its implementation in Europe.” It thus can be said that this cognition of David is very objective and pertinent. Although he analyzes the issues from the standpoint of Western scholars, he can find that the law recieved by other countries is independent, the subject of receiving countries is voluntary and the limitation of legal reception, which is anyone cannot deny the existence of original domestic civilization and the its existence after receiving other countries' civilizations.{13}In accordance with this opinion, in the development history of law in the world, the reception of Roman law by Germany, the reception of laws in Western countries by non-Western countries and the reception of German law, French law, English law and American law by Asian countries can be classified into the category legal reception. It should be noted that the reception of laws in European countries by Asian countries, such as the reception of French law and German law by Japan and the reception of Japanese law by China, did not cause the substantive conflict between different cultural traditions, though there were differences between cultural traditions in these countries. In fact, most receivers consciously avoided conflicts between the adopted law and domestic law, and the actual method is to eliminate the parts that may cause the conflicts in advance and only receive the same parts of both human society and the country of legal reception.