Forty themes on the innovation and development of chinese legal research in the reform and opening up era

• Author: Forty themes on the innovation and development of chinese legal research in the reform and opening up era
• Pages: 2-38

FRONTIERS OF LAW IN CHINA

VOL. 14 MARCH 2019 NO. 1

DOI 10.3868/s050-008-019-0002-7

FOCUS

CHINESE LEGAL SCIENCE IN THE 40 YEARS OF REFORM AND OPENING UP

FORTY THEMES ON THE INNOVATION AND DEVELOPMENT OF CHINESE LEGAL

RESEARCH IN THE REFORM AND OPENING UP ERA1

ZHANG Wenxian*

Abstract China entered a new era of reform and opening up after the Third Plenary

Session of the 11th Central Committee of the Communist Party of China in 1978.

During the past forty years of rapid socioeconomic change and historical progress

toward governing the country according to law, legal research in China has achieved

unprecedented progress and prosperity. Forty years of legal research during China’s

reform and opening up can be reviewed and summarized from varying perspectives,

using wide-ranging approaches. This article will identify major theoretical issues and

several innovative perspectives concerning legal research in China over the past forty

years. It will focus on theoretical issues concerning jurisprudence, legal history, and

other major areas of legal science.

Keywords legal research, new era, legal history, China’s legal science

I. ON THE NATURE OF LAW............................................................................................. 3

II. DISCUSSION ON EQUALITY BEFORE THE LAW ............................................................ 5

III. A GREAT DISCUSSION ON THE RULE OF MAN, THE RULE OF LAW, AND THE RULE OF

VIRTUE ..................................................................................................................... 5

IV. ON THE BASIC DOMAINS OF LEGAL RESEARCH ........................................................ 7

V. A G REAT DISCUSSION ON THE BASE OF LAW ............................................................. 9

VI. THE THEORIES OF THE RULE OF LAW, A COUNTRY WITH THE RULE OF LAW, AND

CHINA WITH THE RULE OF LAW............................................................................... 9

VII. THE SCIENTIFIC DEVELOPMENT AND CORRECT PATH OF SOCIALIST RULE OF LAW

WITH CHINESE CHARACTERISTICS ....................................................................... 10

VIII. RESEARCH ON THE BASIC THEORIES OF THE LEGAL SYSTEM ............................. 12

IX. THE MODERNIZATION OF THE LEGAL SYSTEM ....................................................... 12

* (󰉜󰌓) Ph.D. in Philosophy, School of Philosophy and Sociology, Jilin University, Changchun, China;

Vice President and Director of the Academic Committee, China Law Society, Beijing 100081, China; Senior

Professor of Liberal Arts, Jilin University, Changchun 130012, China; Professor and Honorary Dean,

Guanghua Law School, Zhejiang University, Hangzhou 310008, China. Contact: wenxianzhang@vip.

sina.com

2019] FORTY THEMES ON THE INNOVATION AND DEVELOPMENT OF CHINESE LEGAL RESEARCH 3

X. THE RULE OF LAW AND ITS REFORM ....................................................................... 13

XI. THE RULE OF LAW AND THE MODERNIZATION OF GOVERNANCE OF THE

COUNTRY ............................................................................................................... 14

XII. THE RULE OF LAW AND THE INNOVATION OF SOCIAL GOVERNANCE.................... 15

XIII. THE DISCUSSION ON THE CHINESE LEGAL SYSTEM............................................. 16

XIV. RESEARCH ON LEGAL CULTURE AND THE CULTURE OF THE RULE OF LAW......... 17

XV. RESEARCH ON HUMAN RIGHTS AND FUNDAMENTAL CIVIL RIGHTS ..................... 18

XVI. THE THEORY OF THE CHECK ON AND SUPERVISION OF POWER........................... 19

XVII. RESEARCH ON “ONE COUNTRY, TWO SYSTEMS” AND THE BASIC LAW OF THE

SPECIAL ADMINISTRATIVE REGIONS .................................................................. 20

XVIII. THE ENFORCEMENT OF THE CONSTITUTION AND LAWS .................................... 20

XIX. THE “BALANCE THEORY” OF ADMINISTRATIVE LAW .......................................... 21

XX. ON THE FRAMEWORK OF THE CIVIL CODE............................................................ 22

XXI. DEBATE ON THE PROPERTY LAW .......................................................................... 23

XXII. THEORIES ON INTANGIBLE PROPERTY RIGHTS................................................... 24

XXIII. THE PRINCIPLES OF TORT LIABILITY................................................................. 25

XXIV. THE DISCUSSION ON MARRIAGE AND INHERITANCE......................................... 26

XXV. THE NATURE AND STATUS O F COMMERCIAL LAW .............................................. 26

XXVI. THE DISCUSSION ON “GENERAL PRINCIPLES OF COMMERCE”.......................... 27

XXVII. THE DEBATE ON THE OBJECT OF REGULATION OF ECONOMIC LAW ................ 28

XXVIII. THE DISCUSSION ON THE PRINCIPLE OF LAW-BASED TAXATION ................... 28

XXIX. THE DISCUSSION ON THE BASIC THEORY OF SOCIAL LAW................................ 29

XXX. RESEARCH ON LABOR RELATIONS AND THE LABOR CONTRACT THEORY.......... 30

XXXI. THEORETICAL RESEARCH ON ENVIRONMENTAL RIGHTS .................................. 31

XXXII. THE DISCUSSION ON NULLA POENA SINE LEGE.............................................. 32

XXXIII. DEBATE ON THE FRAMEWORK OF CONSTITUENT THEORIES OF CRIME .......... 32

XXXIV. DEBATE ON LEGAL INTERESTS AND HARM TO SOCIETY ................................ 33

XXXV. THE DISCUSSION ON THE PRESUMPTION OF INNOCENCE................................. 33

XXXVI. THE DEBATE BETWEEN “OBJECTIVE TRUTH” AND “LEGAL TRUTH”............. 34

XXXVII. ON THE TRANSFORMATION OF THE BASIC MODEL OF CIVIL

PROCEDURE.................................................................................................. 34

XXXVIII. RESEARCH ON GLOBAL GOVERNANCE AND INTERNATIONAL RULE OF

LAW............................................................................................................. 35

XXXIX. RESEARCH ON THE THEORIES OF INTERNATIONAL ECONOMIC LAW.............. 36

XL. RESEARCH ON THE REFORM AND DEVELOPMENT OF LEGAL EDUCATION ............. 37

I. ON THE NATURE OF LAW

The nature of the law is a core issue in legal theory. It has also been the subject of a

heated controversy within China’s legal circles during the reform and opening up era. In

the course of the debate, the perceptions of the nature of law have gradually shifted from

a singular focus on the class-based nature of law to the social feature of law, from the

4 FRONTIERS OF LAW IN CHINA [Vol. 14: 2

ideology of law to the regularity of law, and from the ontological significance of law to

the functional significance of law. Progress and deepening of the discussion on the nature

of law have far-reaching consequences. They help eradicate longstanding erroneous

perceptions such as “taking class struggle as the target” in the field of legal research;

establish a comprehensive and correct understanding of the nature, function, and

significance of socialist law; and uphold and develop Marxist legal theory.

The controversy over the nature of law in the 1980s related to the following main

issues: Is law a unique phenomenon of a class society? How do we understand the

class-based nature of law? Is the nature of law rooted in its social feature? How do we

understand the nature of law in the social context? What is the relationship between the

class-based nature of law and the social nature of law? Does socialist law represent the

will of the ruling class? Following a debate, most scholars believe that the nature of law is

multi-layered and multi-faceted. The primary essence of law is the will of the ruling class,

and the advanced-level essence is the material living conditions in a given society. Law is

not only a means of the ruling class. The law is also a means of social governance. Its

nature is embedded in the broader social context.

Three main views on the nature of law appeared after the 1990s. According to the first

view, the nature of law should be rediscovered. This line of thinking perceives the nature

of law as multidimensional. Contrary to a purely ontological view, the understanding of

the nature of law should be guided by DENG Xiaoping’s generalized perception of the

essence of socialism and viewed from a functional perspective. The aim of law is to

liberate, protect, and develop social productivity. According to the second view, “the

theory of the will of the ruling class” should be rejected. It holds that law should first

embody the rules of the market economy, rather than the will of legislators. If laws are

made to reflect the will and expectations of legislators one-dimensionally rather than by

respecting the logic of the economy, it would result in destructive results for the economy.

The development of the market economy in China sparked conflicts between the theory

of economic rules and the theory of the will of the legislators and lent support to the

former. Pursuant to the third view, the “theory of the nature of law” needs to be

deconstructed. It holds that the long-drawn debate over the nature of the law has centered

on the understanding of the “essentialism” or “fundamentalism” of law, namely, that the

law has a fixed nature, which is key to our understanding of this concept. The criticism of

fundamentalism or essentialism is based on postmodern philosophy, especially the

philosophy of linguistic analysis. Scholars who hold this view believe that laws (such as

codes, customary law, and judge-made law) have “family resemblance” only because of

their convenient usage. They are united by the same name, rather than by their common

and unchangeable nature. The nature of law is actually imposed by their users on the

object of “law.” Therefore, we should abandon the artificial fiction of “nature” and

remove this concept from metaphysics, and inject it in daily life.

The discussion on the nature of law also involves the contention of whether there was