论文总字数：30893字

摘 要

作为一种艺术形式，电影不仅仅具有娱乐和商业价值；它也是文化的载体，蕴含着丰富的文化知识。一个民族或者国家的文化可以通过电影淋漓尽致地表现出来。电影《刮痧》讲述的是一个关于中美文化冲突的故事，这一影片主要围绕刮痧这一事件将中美文化冲突引向了高潮。本文以电影《刮痧》为例，从中美法律文化差异的起源与差异在影片中的具体表现出发，分析了《刮痧》中所呈现的中美法律文化差异，并从经济、政治、文化等方面剖析了造成这种差异的社会根源，从而更好地了解和尊重对方的文化，消除民族偏见和打破文化定型，避免自我文化的优越感,理解其他国家和民族的文化,努力消除对异质文化的隔膜，提高跨文化交际的质量，促进本国与其他民族和国家之间的交流与合作。

关键词：法律文化；差异；《刮痧》；跨文化交际

Contents

1. Introduction 1

2. Literature Review 1

2.1 Theoretical Basis 1

2.2 Studies on Law Culture at Home and Aboard 2

3. Law Culture Differences Between China and America in the Movie 3

3.1 Scrapping 3

3.2 Relationship Between Parents and Children 4

3.3 The Initiative of Laws 5

4. Causes of Differences in Law Culture 5

4.1 Characteristics of Law Culture in China and America 5

4.2 Political Differences 7

4.3 Economic Differences 7

4.4 Cultural Differences 8

5. Implications for the Attitudes toward Law Culture 9

5.1 Attitudes toward the Traditional Law Culture of China 9

5.2 Attitudes toward the Law Culture of America 9

Works Cited 12

1. Introduction

Because of many factors, such as history, geography and politics, different countries have their own culture and values. With the rapid development of globalization, there are more and more frequent communication between different countries and nations. When people with different cultural backgrounds live together, conflicts will inevitably emerge. Only by understanding each other’s culture and communicating with each other friendly, can we live in harmony. GuaSha demonstrates cultural contradictions and conflicts triggered by guasha, a traditional Chinese medical treatment. However, it was considered evidence of child abuse in America. The movie tries to indicate the trend of integration and coexistence of Chinese and American culture through the family life of Xu Datong in the movie. The movie GuaSha presents a fact that conflicts come from different cultures and values due to various histories, politics, and economies, and so on. Cases in the film reflected that law values of China and America typically belong to two completely different law culture systems. Roots of conflicts between the two parties and their different measures to solve problems just reflected the differences between Chinese and American law culture. Based on the movie Guasha, this thesis, starting from the concrete manifestation of the differences in law culture between China and America in the film, analyzes the causes of differences from the economic, political, cultural and other aspects of the society. In order to better understand and respect American culture, eliminate ethnic prejudice and break stereotype, avoid ethnocentrism, efforts must be taken to eliminate the diaphragm of the different culture, improve the quality of cross-cultural communication, and promote exchanges and cooperation between China and other nations and countries.

2. Literature Review

2.1 Theoretical Basis

Law culture refers to the legal life of group behavior and concept. Some scholars believe that the law culture is composed of two parts: one is the legal entity, namely national design and the realization of tangible legislative and judicial activities, such as legal systems, legal norms, legal facilities, law documents; the other is the legal consciousness, namely intangible law culture, such as viewpoints and methods, including the legal thoughts, legal theories, legal concept, legal values, legislative and judicial experience, and so on. Thus, the law culture can be said to be hierarchical. A country’s legal system and norm is a kind of surface structure of law culture, and its deep structure refers to the basic concepts, categories and legal values, concerning people’s accumulation in the long-term social practice, as well as legal thinking modes or manners associated with the production modes.

Laurence M Freedman, in the book the Concept of Law culture: a Reply, in 2003, gives a clear definition, namely law culture refers to certain values, expectations and attitudes of the law and legal system held by a part of public. Law culture, as an important part of human culture, is decided by social economic base: material production conditions. Law culture embodies some of the basic features of legal superstructure: (1) Law culture depends on substance; (2) law culture has the political function; (3) law culture has general applicability; (4) law culture is practical; (5) law culture has historical continuity; (6) law culture has national characters (7) Law culture is mutual melting.

Chinese and western law culture are products of their own geographical environment, social environment and historical and cultural environment. They generate their own characteristics and differences respectively, but the characteristics of them are different rather than not good. (zhang zhongqiu, 1991:7)

2.2 Studies on Law Culture at Home and Aboard

Law culture was first put up in 1969 in America, proposed by jurist Laurence Freedman in the article law culture and social development. Our introduction of the concept and discussion of law culture began in the 1980s. From the existing data, law culture, as a complete concept and research topic, first appeared in the first issue of Translation of law in 1985 in the mainland of China. Comparative jurist professor Pan Handian translated Theory of Law Culture in America, written by law professor Li S. Weinberg and Judith W. Weinberg in Pittsburgh University. This indicated that our country began to pay attention to law culture. Among Chinese scholars, it is Professor Sun Guohua, a professor of law at Renmin University of China, who first put up law culture as a new legal concept and legal theory. Basic Legal Theory, written in 1985 by him, for the first time discussed the law culture. Since then, the law culture has become a subject of law and attracted our attention. Scholars have published research papers and monographs of law culture, but the scope of the study are limited in a comparative study on the system of Chinese and western national laws or legal thought level, and a few reflect the countries’ features of law culture combined with actual cases.

3. Law Culture Differences Between China and America in the Movie

Chinese people Xu Datong and Jian Ning moved to the United States, and have lived there for eight years. They finally realized their American dream, having a happy family, a lovely child and enviable social status. Their five year old son, Dennis, however, had stomachache suddenly. His grandpa took guasha treatment, Chinese folk treatment on grandchildren. Later doctors found that there were scratches on the child’s back which may be caused by family violence. Dennis was sent to the children’s welfare centre for a moment. Then the welfare association accused Xu Datong of child abuse and provided a variety of evidence. To the court, in order to protect his father, Xu Datong pretended that it was he who scrapped on Dennis. He took the responsibility and asked his wife not to tell the truth to his father. The old man then knew the confusion he had caused, returning to China with agony. Before the old man returned home, Xu Datong realized the elder’s love for grandson, ignored the laws of the United States and took the child from the children welfare association secretly, in order to let father see grandson before going home. Xu Datong was caught by the police and was forced to separate from his son. At Christmas night, in order to meet his son, Da Tong, risking his life, climbed up the window on the ninth floor along the pipe. After great efforts, the court finally identified with the “guasha” therapy. The story had a happy ending. The film of ethical conflicts in law culture is thought-provoking.

3.1 Scrapping

Western medicine and inspection instrument are dominant during the treatment. The function of the instrument decides everything. When the instrument cannot detect the problem, it is difficult to make the diagnosis. The result of Western medicine treatment is: when technological progress falls behind of the evolution speed of pathogen, mankind will pay a heavy cost. On the other hand, the Chinese always observe the evolution rules, use medicinal herbs which grow naturally for treatment, and did not break the balance of natural evolution. This can ensure the continuation of human population. Traditional Chinese medical thought is not to conquer and destroy, but to keep harmony and balance. Its principle is not killing the invading virus, but transformation of yin and Yang and keeping balance. Therefore, Chinese especially pay attention to qi, regulating qi. Scraping therapy is based on this principle. However, this treatment was distorted by Americans. The biggest conflict in this film is scrapping treatment, a popular treatment in China for thousands of years. Xu Fu gave sick grandson scrapping. It was very common in China. However, in the United States of America, it was regarded as evidence of child abuse. Western medical treatment is completely different from that of China. So the westerners cannot understand the Chinese traditional treatment “guasha”. In the film, when Xu Datong exerted every effort to explain the scraping: “This is a traditional Chinese medical treatment. Chinese medicine holds that the vessels of human body like countless brooks flowing into rivers. The human body is a complex network and gas flows in the system.” But Americans thought that what Xu Datong said were nonsense and incomprehensible. In American culture and law, any other traditional Chinese medical treatment except acupuncture treatment is not recognized legally (Mark, 2001: 19). So the laws of the United States will not give scrapping a legal position, and hold that what makes a person scarred is abuse. Therefore scrapping is hard to be understood by the Americans. On the contrary, Chinese laws don’t put the scrapping as illegal behavior. As a result, the misunderstandings ushered a series of contradictions and conflicts.

3.2 Relationship Between Parents and Children

When two children had contradictions, Da Tong punished his son to show respect for his boss. Chinese traditional culture, with the core of Confucianism, has kept the hierarchical system for thousands of years and has always advocated the pecking order. Whether for the country’s ruling or family management, it emphasizes the rank. The family is the basic unit and the carrier of the development of Chinese culture. So from Xu Da tong, the people of Chinese ancestry and culture, we can still see the effects of hierarchical ideology, which were reflected both from his respect for father and his rules on wife and son. At the same time, he thought that his son was subordinate to him. He took for granted that he could punish his son according to his own will. In China, most children are brought up with strict disciplines. Just as the saying goes, “spare the rod and spoil the child”. Da Tong’s behavior did not violate laws in China while Americans thought Da Tong has a tendency of violence, and his behavior was illegal. In American culture, people hold that all men are created equal (Kashima, 2008: 39). And they do not hold strict hierarchy. Adults mustn’t leave children home alone and mustn’t abuse them (Freedman, 2002: 67). The regulations of parents’ supervision in American laws also can’t be understood. The most prominent is that the parents shall not let the child stay at home alone, but this is just a common thing in China.

3.3 The Initiative of Laws

Government departments of China will not force to intervene in problems initiatively except for criminal offences. While in the United States, judicial departments will be actively involved in many problems including some social groups involved. In the west, in any civil or other legal disputes, law is proactive. So for the first time the doctor found the so-called wounds on Dennis, he directly related to the bureau of children welfare. And Da Tong was forced to be isolated from his son, without any chance to explain. But because the traditional family values in China，family civil disputes are more expected to be coordinated.

4. Causes of Differences in Law Culture

4.1 Characteristics of Law Culture in China and America

Chinese traditional law culture consists of three independent and mutually interdependent categories; they are etiquette, morality, criminal laws and politics (Cui Yongdong, 2002: 116). The three aspects can be said to be of a high degree of understanding and generalization of the Chinese law culture. First of all, to some certain degree, ritual is a traditional Chinese style or subject of traditional law culture in China. Chinese law culture is dominated by Confucian legal thought, and Confucius in Confucian thought overrated “rites”. In part of the ante-Qin Confucian ideology, “rite” is indeed a moral principle of law. Rite is to Chinese law, what God is to Church law. Secondly, the legal thought of virtue has been the thrust of the law culture for thousands of years. Virtue in Chinese traditional law culture has played a very important role. “Rule by virtue”, first put forward during the Western Zhou dynasty, was completed in Analects of Confucius. In Western Zhou dynasty, virtues were emphasized while punishments were understated. Confucius first proposed the idea that virtues came first and punishments second. Confucian school’s special emphasis on the role of ethics in politics advocated the combination of virtues and punishments. Finally, Chinese traditional laws took penalties as functional orientation. Even Confucianism, advocating “rule of virtue”, together with leniency, or opposing penalties, in some cases, also applauded the attitude that virtues combined with penalties are the basic point and means of governing.

Contrast to the self-sufficient natural economy in the soil of the Chinese law culture, America’s law culture is in development under the conditions of the more developed and mature commodity economy. This determined their wide differences .First, American law culture is built on the philosophical basis of ancient Greece. Natural law is the core of the system of law (Issawi, 1998: 53). Nature conditions, natural rights, natural laws and the social contract theory had been the essential elements of the theory of natural law. Second, the idea that all men are created equal is the essence of American law culture. It is on the contrary to the idea of hierarchy in China’s traditional law culture. Finally, the focus on individual rights of individual thought is deeply rooted in American law culture. American law culture is rooted in a spirit of democracy and freedom in Greece law and Roman law. Individualism, as its characteristic, formed the historical tradition of the protection of the rights and freedoms of the individuals. This law manifests itself as a social contract and takes rights as the core, which forms law-oriented characteristic of jurisprudence. Individualism in American law system developed mainly through the favor for individualism and negation of collectivism. It is correspond to the community’s political, economic and cultural characteristics as well as its development in America.

4.2 Political Differences

Chinese saint politics and western contract politics came from different cultural origins, which also led to the different political systems. In ancient China, the citizens were mostly ignorant and the saints were in contrast to the ordinary people. There was a disregard for the ordinary’s human rights and political culture. And western political tradition of contract came from its own history and culture. As a result, the formation of the western democratic political system came into being. In ancient China, people’s fates were in the hands of Kings, princes and officials. Such political system reflected the features of centralized hierarchy; while the individual rights are wiped out. In contrast to the Confucian sage politics is the western contract politics, as early as in city-states period in ancient Greek has realized “direct democracy”. Government officials and leaders were elected by citizens and the draw. Rulers must achieve the approval of the public, and then the rule of party will be legal rule and power become legal power. The thought of social contract was the premise and basis of individual existence of freedom and equality. The development of the individual freedom and equality was closely combined with the development of the social contract idea.

4.3 Economic Differences

The evolution of the social development is essentially an evolution of three different economic forms, namely natural economy, commodity economy and product economy. It is the evolution of economic types reflected on people’s development. Chinese traditional law culture belongs to the agricultural civilization while western law culture belongs to the western industrial civilization culture. It is the differences in cultural patterns that caused differences in laws of China and America. In the period of agricultural civilization, the collective values of ethical culture always influenced the development of ideology. And in the agricultural civilization, self-sufficient natural economy restricted the ranges of people’s activities. People living in cramped acquaintances society often rely on ethics, morals, customs, and social norms to adjust people’s behaviors. Laws put forward for the maintenance of national sovereignty did not find application of consciousness, let alone the modern concept of rule of law. People did not hold that the law is supreme. The western society has a long tradition of commodity economy, so the activities of equal citizens need universally applicable legal norms. This also gave birth to the modern concept of the rule of law. Western industrial civilization makes people initiative in the relationship with nature. Equality of the market economy and freedom of the nature have lifted the bondage of personal attachment to others, made the person increasingly independent in social relations and completed the differentiation between the human and the nature as well as division between people and groups. Western law concepts have fully gone through the differentiation and combination of the individuals and the groups. The consistency produced later through unity of individuals and groups is the freedom of the individuals.

4.4 Cultural Differences

Culture is a comprehensive phenomenon of human development and law is a part of this comprehensive phenomenon. The existence and activities of laws are influenced by culture on the one hand and have influence on the culture on the other. In the two thousand years of feudal society in the process of China’s history, Confucianism has the deep-rooted dominance all the time and has profound and long-term influence on Chinese society. Chinese people have always adhered to the Confucian “golden mean” and view it as the basic rules of behavior. The doctrine of the mean is the Confucian pursuit. Confucianism takes benevolence, righteousness, courtesy, intelligence and faith as the core of the ideological and moral concepts and as each person’s behavior guidance (Lin Hong amp; Wang Zhengfu, 2010: 131). To treat people and deal with problems, people should be tender, thrifty, modest, respectful and open-minded. Overly expressing oneself and being showy are strongly opposed. Therefore, Chinese traditional culture reflects the characteristics of collectivism; the collectivism of cultural characteristics does not allow letting personal values take precedence over group interests. China pays great attention to collectivism, puts traditional values of the collective interests above individual interests, and thinks individual interests should be subordinated to the interests of the collective. Sometimes when personal interests are in conflict with collective ones, Chinese will make personal sacrifices to preserve the interests of the collective; while American culture is an individualistic culture that the individual freedom is inviolable and collective interests should not override the individual interests.

5. Implications for the Attitudes toward Law Culture

5.1 Attitudes toward the Traditional Law Culture of China

Every nation has its own customs. Depending on the customs of laws and through the efforts of countless generations, the law culture of a country gradually formed in the form of cumulative development. Civilization has got through trial and error, accumulated experience over a long period and took great efforts to obtain the spiritual and cultural achievements. Chinese traditional law culture has gone through thousands of years of history, and left a rich cultural heritage for later generations. Chinese traditional law culture is an important part of the law culture of China and the world, together with very significant research values. But for various reasons it has not got impartial treatment. There are two extreme views: one is to render it as the quintessence of the Chinese nation; the other is total rejection. Both these two attitudes are not right. We should analyze Chinese traditional law culture and the heritage of nature scientifically, as well as combine them with China’s practical conditions. We also need to inherit and retrofit the reasonable factors of traditional law culture for the construction of modern legal system, such as the idea that virtues came first and punishments second, and Confucian school’s special emphasis on the role of ethics in politics and the combination of virtues and punishments. These will help to realize the modernization of traditional law culture.

5.2 Attitudes toward the Law Culture of America

China made the transition from the traditional legal system to modern legal system in an exogenous road. So, for China, legal transplant is the most convenient and compulsory method. Legal transplant for the modern transition of Chinese law is of great significance. It quickly makes up for the vacancy in Chinese modern legal system, changes the drawbacks and conservation at the system level and eliminates helpless situations in dealing with a new social relationship because of legal loopholes. Besides, it also provides theoretical basis for new legal concept spreading in the nation. But the contribution of legal transplantation for modernization of legal system is limited. If we want to make it play a role completely, the key is to coordinate the introduced legal system and principles with China’s existing systems and principles, with Chinese realistic national conditions and customs. While maintaining the advanced nature of the introduced laws, we also need to turn them into suitable ones for China’s reality in order to obtain maximum social functions of adjustment. And based on this grows new systems and principles. The relationship between western legal civilization and Chinese traditional law culture is an important subject of China and will throughout the whole process of the modern transformation. As a result of the long-term closed environment and the conservatism of the cultural system itself, the traditional Chinese law culture is facing the challenge of western legal civilization and seems unproductive. Therefore, breaking the traditional backward legal system and introducing some of western legal factors no doubt have the rationality. But on the other hand, the western legal factors which are introduced, only to plunge into the soil of Chinese culture and accumulate gradually as part of the Chinese law culture, can be adaptive and successful. Critically inheriting the reasonable elements of Chinese traditional law culture and American law culture can provide theoretical support to promote the modernization of Chinese contemporary legal system, contribute to the great practice of the contemporary reform and opening up, make clear the tasks of Chinese legal system in the new time and adhere to the correct direction of the construction of Chinese socialist legal system.

6. Conclusion

With the rapid development of science and technology, the world becomes smaller and smaller and the relationship between different ethnics are closer and closer. In contemporary globalized world, different cultures in this integration platform have more frequent exchanges. When people of different cultures live or communicate with each other, conflicts will inevitably be produced. In the movie, Xu Datong can only act in his own way, such as climbing the window and taking his son secretly, which he thought to be right. while for Americans, what Da tong took for granted were nonsense. But in the end, when they understood each other’s culture after great efforts, all the misunderstandings were untied. The inspirations Guasha gives us do not just stay in the skin deep comparison between Chinese and American culture, but more a vision of integration of multicultural society. Actually, I don’t think there is a perfect plan or solution to eliminate conflicts, because the diversities of culture is an eternal theme and will always exist. To some extent, we can even say, human civilization is so prosperous as result of the diversities among nations and ethnics. There inevitably exists great differences in people’s attitudes, behaviors and performances. The main obstacle of cross-cultural communication is not language, but people’s ideas and social cultures. It is extremely difficult to completely adapt to a new culture. The use of languages, hair colors and eating habits can be easily changed, but there was something inside especially deep cannot be changed, such as national spirits, customs and cultures. Fusion of cultural differences in this film has up to an extreme, but what I want to stress is that the gap between cultural differences is not insurmountable.

Cultural differences exist objectively and differences in culture itself are not bad things. Cultural conflicts are mostly brought by misunderstandings. It can be seen from the film that we require understanding between different cultural spirits and having broad minds. Avoiding and giving up communication is not the way to solve the cultural conflicts between each other. In order to reach the goal of communication between different cultures, the two communicating parties should hold a tolerant attitude to eliminate ethnic prejudice, break the cultural stereotypes and insist on the principles of cultural equality as well as overcome the national centralism. We should take part in cross-cultural exchanges between China and other countries actively, promote the establishment of mutual trust and avoid self superiority of culture. Efforts must be taken to eliminate the diaphragm of heterogeneous culture and improve the quality of communication. Only by doing so, can the world be a more colorful family. In cross-cultural communication, we ought to keep the cultural differences in mind. We should learn more knowledge about western countries, especially their unique cultures, including histories, politics, economies, religions as well as cultural taboos. Only when understand each other’s culture, can we understand each other’s behaviors, like the last great unity in the movie. In the end of the film, various languages resonated in the starry sky, seemingly the sign of fusion of Chinese and American culture and the prospect of multicultural identity.

Works Cited

[1] Byers, Mark. GuaShaTreatment. Beijing: Beijing Forbidden City Film Co., 2001.

[2] Charles, Issawi. Cross-cultural Encounters and Conflicts. London: Charles 　　　 Oxford University Press, 1998.

[3] Laurence, Freedman. American Law in the 20th Century. New Haven: Yale University Press, 2002.

[4] Mahan, R. Gurubatham. Education and the Knowledge Society. Springer US, 2005.

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[7] 崔永东．《中西法律文化比较》．北京：北京大学出版社，2004.

[8] 高永晨．《文化全球化态势下的跨文化交际研究》． 南京：东南大学出版社，2006．

[9] 胡文仲．《跨文化交际学概论》．北京：外语教学与研究出版社，1999．

[10] 林红，王镇富．《中外文化的冲突与融合》．山东：山东大学出版社，2010．

[11] 张中秋．《中西法律文化比较研究》．南京：南京大学出版社，1991.

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