Chinese Legal System-Introduction to law.doc

It is more proper that law should govern than any one of the citizens -Aristotle, 350BC, Politics What is law?The concept of law is very broad. Although it is difficult to state a precise definition, Blacks Law Dictionary gives one that is sufficient for our text:“Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.” “That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law”.Definition under the prevailing contemporary Chinese jurists:法是由国家权力机构制定或认可、并由国家强制力保证实施的、规定人们权利和义务的社会规范的总和。Law is 1). Social criterion regulates rights and obligations2).established or ratified by the States power institution3). implemented with the guarantees of States coercive power在我国古代，法与刑、律一直可互训，含义基本相通，即指“刑”，并不具有现代“法”的意义。灋，从“水”, 表示法律、法度公平如水;从“廌”(zh),即獬豸,神话传说中的一种神兽,据说,它能辨别曲直,在审理案件时,它能用角去触理曲的人。Schools of Jurisprudential Thought:The philosophy or science of the law is referred to as Jurisprudence. There are several difference philosophies about how the law developed. They range from the classical natural theory to modern theories of law and economics and critical legal studies. Legal philosophers can generally be grouped into the following major categories. The Natural Law School of jurisprudence postulates that the law is based on what is “correct.” Natural Law Philosophers emphasize a moral theory of lawthat is, law should be based on morality an ethics. Natural law is “discovered” by man through the use of reason and choosing between good and evil. The Legal Positivism School lies in direct opposition of ideas of natural rights, where some rights are considered inherent to humans. The principal claims of legal positivism are that: a) laws are rules made, whether deliberately or unintentionally, by human beings; and b) there is no inherent or necessary connection between the validity conditions of law and ethics or morality. The Historical School of jurisprudence believes that the law is an aggregate of social traditions and customs that have developed over centuries. It believes that changes in the norm of society will gradually reflected in the law. To these legal philosophers, the law is an evolutionary process. Thus, historical legal scholars look to past legal decisions (precedent) to solve contemporary problems. The Analytical School of jurisprudence maintains that law is shaped by logic. Analytical philosophers believe results are reached by applying principles of logic to the specific facts of the case. The emphasis is the logic of the result rather than on how the result is reached. The Sociological School of jurisprudence asserts that the law is a means of achieving and advancing certain sociological goals. The followers of this philosophy, who are known as realists, believe that the purpose of law is to shape social behaviors. Sociological philosophers are unlikely to adhere to past law as precedent. The philosophers of the Command School of jurisprudence believe that the law is a set of rules developed, communicated, and enforced by the ruling party rather than a reflection of the societys morality, history, logic, or sociology. This school maintains that the law changes when the ruling class changes. The Critical Legal Studies School propose that legal rules are unnecessary and are used as an obstacle by the powerful to maintain the status quo. Critical Legal theorists argue that legal disputes should be solved by applying arbitrary rules that based on broad notion of what is “fair” in each circumstance. Under this theory, subjective decision making by judges would be permitted.Legal Systems: Civil Law, Common Law, Islamic Law, Socialist Law, Customary LawCivil LawCivil law is the most widespread system of law in the world. Civil law may also be referred to as Continental civil law, or Roman law, Romano-Germanic law.The legal systems in many civil law countries are based around one or several codes of law, which set out the main principles that guide the law. The landmark events in the history of civil law are the Napoleonic Code, the German Brgerliches Gesetzbuch (the civil code of Germany) and the Swiss Civil Code.Scholars of comparative law subdivide civil law into four distinct groups:French civil law: in France, the Benelux countries, Italy, Spain and former colonies of those countries; German civil law: in Germany, Austria, Croatia, Switzerland, Greece, Portugal, Turkey, Japan, South Korea and Taiwan; Scandinavian civil law: in Denmark, Norway and Sweden. Finland and Iceland inherited the system from their neighbors. Chinese law is a mixture of civil law and socialist law. Common Law“The system of laws that has developed from customs and the decisions of judges rather than from laws made by Parliament” Common law developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action. Common law is law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.Socialist LawSocialist law is the official name of the legal system used in Communist states. It is based on the civil law system, with major modifications and additions from Marxist-Leninist ideology.Islamic LawThe Sharia (literally: the path leading to the watering place) is Islamic law formed by traditional Islamic scholarship, which most Muslim groups adhere to. In Islam, Sharia is the expression of the divine will, and constitutes a system of duties that are incumbent upon a Muslim by virtue of his religious belief.Legal System 法系 vs. System of Law Branches 法律体系/部门法体系We learn from above that Legal Systems are formed and developed with historical and cultural factors. But the System of Law Branches has nothing to do with the nations history or culture.Distinguish by 1) the objects regulated by the law and, 2) the methods and measures of regulation, the existing laws within a States Jurisdiction are categorized into certain branches.The seven Branches of Law in modern China: Constitution and its related laws 宪法及宪法相关法 Civil Law and Commercial Law 民商法 Economic Law 经济法 Administrative Law 行政法 Criminal Law 刑法 Procedure Law 诉讼与非诉讼程序法 Social Law 社会法The system of law branches refers only to the system of existing domestic laws in a country. The International Law, although admitted as a source of law in China, is not within the branches of Chinese law.Public Law, Private Law and Social LawCategorizing Laws into private and public sections is the tradition of Civil Law countries. Nonetheless, there has not been a universally applied criterion or standard in classifying them. We usually classify them with their focus of protection- whether on National interest or Personal private interest. With the recent development of modern society, “socialization of law” has become an outstanding phenomenon and derivatively gave to the birth of Social Law. It is found acceptable that an independent Social interest exist in modern society, which