1. THE EMERGENCE OF MODERN WESTERN LAW

By modern Western law we mean the legal systems of European countries in the nineteenth century after a long history of evolution. It first revealed itself in the legal system of the Romans, and evolved further through the middle-ages and the Renaissance to the emergence of modern states.

It was this modern system which was carried along to the East by merchants and naval forces. The impression of the modern system on the Eastern mind was deep and soul-searching. Several superior qualities of the Western legal system made the Eastern mind feel the necessity of reception. We shall illustrate briefly some characteristic points of them.

1. The modern Western legal system was based on the particular system of jurisprudence originated in the Roman genius, refined by the Glossator and Post-Glossator Schools, and enriched and rationalized by eminent jurists of the classical era of natural law. In witnessing the emergence of legal rationality we may say, in Max Weber's terminology, that, with the advent of the nineteenth century, Europe completed the long process of legal development. The heterogeneous pre-modern law was, by means of the modern doctrine of natural law and the idea of Enlightenment, transformed into a really modern law, rational, efficient and humane. The driving force of this transformation was the jurisprudence of Roman times, nourished with the developing Western ethos by the legal profession. It is only in Western culture that the jurist and his craft have enjoyed a place of honour in society. The jurisprudence developed by the legal profession made the Western law easier to enforce, teach and furthermore to be implanted in other countries.

2. The emergence of the modern nation state, with the doctrine of sovereignty, made it possible for the modern concept of legislation to become the driving factor in the formulation of law by human authority. As modern law could always be reformulated, modern European states were able to improve their administration more effectively. The society which had been slowly growing could be reshaped in its various fields in a relatively short period. The modern Western society was progressive and full of hope and confidence in the virtue of human legislation.

3. The modern European states developed an efficient administrative and judicial system and expanded their operations into every part of their territories, however remote from the centre.

4.Since the beginning of the modern period, the idea of liberalism and individualism led to the reform of private law in accordance with the principles of equality, the dignity of man, freedom of contract, the inviolable right to property, and others. This further led to rapid progress in economic life, from poverty without amenities, to affluence. The individual began to really enjoy freedom and dignity respected by the state.

5. After the traumatic experiences of religious wars, and the Inquisition from the fifteenth to the seventeenth centuries, Europe was able, by virtue of its spiritual and intellectual resources, to redeem itself through a series of enlightened and enlightening reforms, which included the abolition of the slave trade and cruel punishments. Thus the society and law in Europe in the nineteenth century became fully rational, humane and efficient, and totally different from that of previous ages.

In summary, the modern European legal system, accompanied by mature jurisprudence, was rational and systematic, and easy to impart to other countries. It was quite reasonable that the non-Western countries received it as a whole, whether voluntarily or not. Nevertheless it should be understood that a variety of problems occurred in the process of reception, and are pressing even today in the receiving countries.