Tragic consciousness, natural language and modern spirit of the rule of law

• Author: GAO Yangguang
• Pages: 137-152

FRONTIERS OF LAW IN CHINA

VOL. 13 MARCH 2018 NO. 1

DOI 10.3868/s050-007-018-0009-2

ARTICLE

TRAGIC CONSCIOUSNESS, NATURAL LANGUAGE AND MODERN SPIRIT OF THE

RULE OF LAW

GAO Yangguang∗

Abstract Tragic consciousness, which originated in childhood, is complex compassion

based on strong self-consciousness. After being moralized, tragic consciousness presents

the dichotomy of good and evil, which has not only profoundly affected the formation of

natural language, but also cradled the theory of natural law and religious spirit. Modern

jurisprudence attempts to get rid of the shackles of classics and Christian humanism, to

shape the autonomous and self-consistent image of law with the de lege lata as center.

However, it is difficult for modern jurisprudence to surpass the natural language which

rooted in tragic consciousness, and impossible to neglect or deny the independent value

of the human. The inherent conflict within the rule of law makes ironically a tragedy,

especially in the context of contemporary China.

Keywords tragic consciousness, natural language, spirit of rule of law, modernity

INTRODUCTION .................................................................................................................... 137

I. WHAT IS TRAGIC CONSCIOUSNESS?........................................................................ 139

A. Its Origin ...........................................................................................................139

B. Its Moralization................................................................................................. 143

C. Its Relation with Public Nature......................................................................... 144

II. THE FOUNDATION OF NATURAL LANGUAGE .......................................................... 147

III. TRAGIC CONSCIOUSNESS AND THE RULE OF LAW ................................................ 149

CONCLUSION........................................................................................................................ 152

INTRODUCTION

In recent years, Chinese scholars have focused on how to examine the relationship

between the norms and values. For the researchers of theoretical law, it deals with the

relationship between legal dogmatic and value judgment, and it also concerns the

redefinition of the core concept of justice and law; for legal practitioners, it means the

* (󳞭) Ph.D. in Legal History, School of Law, Renmin University of China, Beijing, China; Associate

Professor, School of Law, Renmin University of China, Beijing 100872, China. Contact: gyg@ruc.edu.cn

This article is a staged research result of National Social Science Fund Project “Reflection on the

Discourse of Jurisprudence under Totalitarianism” (Project No. 17BFX170).

138 FRONTIERS OF LAW IN CHINA [Vol. 13: 137

inevitable balance and choices between the legal thinking in lawyer’s mind and the

common sense in people’s daily life. It is not a fresh topic, but its significance is evident,

because it plays the role of determining the outer boundary of the science of Law. It

provides a reason why the science of Law is an independent subject from other

disciplines: The science of Law lies primarily in its regard to the relationship between the

norms and values.

Modern law, in the positivist dimension, refers to the “compliance to norms.” That is

to say, the responses to all the social problems should first consult the norms, and

ultimately return to them. It does not mean that the norms are detached from values. On

the contrary, values are always behind the norms. Translated into systematic norms by

legal method, the values could be effective.1 These two may be regarded as the

foreground and background, or the two sides of a coin. The question is whether there

exists a universal and general value (natural reason) behind the curtain of norms.

Alternatively, is there only one certain value (the spirit of the epochs) that map to the

particularity of an epoch?

This was once the obvious difference between the school of natural law and historical

school of law, which in essence demonstrated the divergence of conception of history. If

applying Fernand Braudel’s theory, it can be deemed as the discrepancy between the

medium-term and short-term conception of history.2 The process of legal modernization

goes exactly hand in hand with the process of historical nihilism. This might not be

coincidence. With the deepening of modernity, especially in China, values will be further

broken down into pieces and become personal likes and dislikes.3 However, it is highly

doubtful that the law is only working for the sake of temporary interests rather than for

eternal justice. It is also of deep concern about the views of modern law as a

non-eternalized utility. As Harold J. Berman said, “law will become the most exquisite

evil if it lost homeland of values and justice.” The common and definite values or spirits

of law are expected not only by those natural jurists or historical jurists, but also by most

of the positivists, because the health consensus of pluralistic values is the prerequisite of

1 Max Weber classifies the law with this characteristic into rational law: law only judges things by its

internal standards, refusing the influence of external factors such as politics, religion and ethics; the formation

of internal standards is often through logical reasoning abiding by general rules or principles, which enables

people to accurately comprehend the intricate relationship among internal standards with the help of logic

tools. See Max Weber, Rechtssozioligie: Die nichtlegitime Herrschaft. Translated by KANG Le, JIAN

Huimei, Guangxi Normal University Press (Guilin), at 220, 76–77 (2011).

2 The conception of history is composed of long, medium and short terms was e mployed by Fernand

Braudel, the representative of the second generation of the French Almanac, as the superimposed narrative

method in his writings. See Fernand Braudel, La Méditerranée et le monde méditerranéen à l'époque de

Philippe II. Translated by TANG Jialong, ZENG Peigeng, WU Moxin et al., Commercial Press (Beijing), at

8–9 (1996).

3 See Harold J. Berman, Law and Religion (Translated by LIANG Zhiping), SDX Joint Publishing

Company (Shanghai), at 45 (1991).