关键词: 《慈善法》, 法律移植, 形式理性法律, 法律多元主义

Abstract: In the process of legal modernization,China has always been faced with conflicts between transplanted laws and domestic customs. How to build a legal system that both embodies formal rationality and absorbs Chinese cultural traditions has become a significant theoretical problem in the process of China's transformation. Due to the lack of research on micro-policy making processes,the discussions on this issue mostly remain at the macro level. Therefore,this article takes the formation of the concept of "charity" in the Charity Law of the People's Republic of China as an example to explore how legal transplant and domestic customs affect legislation. Weber's formal rational law and substantive rational law,as well as the concept of legal pluralism are applied as theoretical framework for this study. Through the analysis of the legislative process of defining the concept of "charity",it is found that legislation is influenced by two factors:the legislature needs to response to the public demands to enhance its legitimacy,and the legislators themselves are part of the public. These two factors make the concept of charity in law fully reflect domestic customs. The transplant of the legal concept of charity is mainly achieved through the cooperation between legal experts and legislators. Through such interactions,legislators recognize that incorporating local customs into the legal system undermines the internal logic of the law. Therefore,there is a growing demand in China's current legislative process to integrate legal transplant with local customs in a more organic manner. However,due to the separation of proposal and deliberation in the legislative process and the decision-making mode of political bureaucracy,the construction of formal rational law faces a double disintegration. Thus,to facilitate better integration of legal transplant and local customs,the legislative system,with the full participation of legal experts,needs to integrate the drafting and deliberation process,and remove the information constraints on the legislative decision makers (non-legislative technocrats).

Key words: charity law, legal transplant, formal rational law, legal pluralism