This book is an antecedent study on the task facing China's legal science, more strictly speaking — China's legal philosophy, in post-Cold War world structure. In broader terms, this is an academic study of China's own “identity” and future in the world structure. The author believes that from 1978 to 2004, in spite of its great achievements, China's legal science has at the same time had some of its grave problems being exposed. A fundamental problem is its failure to provide a “Chinese legal ideal picture” as the standard of and direction for evaluating, assessing and guiding China's law/legal development. This is an age of law without China's own ideal picture(s). However, why has China failed to have its own legal ideal picture(s)? Apparently this question in and of itself implies a question, both more directly and fundamentally, of China's legal science, namely why China's legal science has failed to provide China's own legal picture(s)? Or, as an internal critical approach may suggest (namely to critique China's legal science from the perspective of its promised objectives), where is China's legal science heading? Based on this, this book attempts to expound a standard to evaluate China's legal science through a theoretical discussion of this issue, and to further explore the possible direction for China's legal science beyond this age.
Contents:
Introduction
China's Legal Science and the “Paradigm of Modernization”
A Critique and Reflection on the “Paradigm of Modernization”
The Absence of “China” in Chinese Legal Scholarship: A Case Study of the Legal Research on “Consumers' Rights”
Further Critical Examination of China's Legal Science (1): A Critique of Liang Zhiping's “Legal Culturalism”
Further Examination of China's Legal Science (Part 2): A Critique of Su Li's “Indigenous Resourcism”
Some Tentative Concluding Remarks
Readership: Researchers, professionals, undergraduate and graduate students interested in China's legal science and legal philosophy studies.
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Yes, you can access Rethinking Chinese Jurisprudence And Exploring Its Future: A Sociology Of Knowledge Perspective by Zhenglai Deng in PDF and/or ePUB format, as well as other popular books in Biological Sciences & Science General. We have over one million books available in our catalogue for you to explore.
China’s Legal Science and the “Paradigm of Modernization”
1. Determining in Details the Approach to Analysis in this Book
As I have pointed out in the beginning of this book, since the reform and opening-up in 1978, China upon its entry into the world structure started the historical process of understanding and practising an all-round building of China’s law/legal system. After three decades of efforts, China has achieved a great deal in the legal scholarship, of which the greatest may be to unfetter our way of thinking on law or legal order from the shackles of the “paradigm of class struggle”.1 Moreover, with concerted efforts by the scholarly community, the science of law as an independent academic discipline was set up.2 Obviously this is just a general impression, far from sufficient to underline our efforts to grasp the basic quality of China’s legal science, for which reason we still need to carry out further analysis in details of China’s legal science. According to my own reading, in this aspect there are two leading analytical approaches,3 one being the analysis by Zhang Wenxian, among others, of the past three decades of development in China’s jurisprudence, while the other is Su Li’s holistic analysis of China’s legal science.
The analysis by Zhang among others, as far as I can see, has such a fundamental feature as that although this analysis revolves around the following five hot spots in academia: “the nature of law”, “the spirit of modern law”, “the rule of law (to govern the state in accordance with law)”, “the modernization of legal system” and “changes and innovations in legal science” (Zhang et al. 1998) and around the main achievements and experiences of research in China’s jurisprudence,4 so as to offer a narration of the development of China’s legal science, yet noticeably, such narration is underlined by what I have termed as the “politics-law” analytical approach, for the distinction of different phases of development in China’s jurisprudence by such analysis still uses the different phases of political development in China as the basic benchmark for distinction, namely (1) “the primary stage of development”: signified and moved by the large-scale discussion of the criterion of truth in 1978 and the Third Plenary Session of the Eleventh National Congress of the Chinese Communist Party (NCCCP), China’s jurisprudence started its pace of marching forward, for which reason the period from 1978 to 1991 was the primary stage of development for China’s jurisprudence; (2) “the stage of accelerated development”: signified and moved by Deng Xiaoping’s Southern Tour and speech and the Fourteenth NCCCP, China’s jurisprudence accelerated its pace of concept changes and theoretical innovations; (3) “the stage of all-round development”: signified and moved by Jiang Zemin’s speech at a conference on the legal system organized by the Central Government in February, 1996 and the Fifteenth NCCCP, China’s jurisprudence further sped up its pace of marching forward, thus entering into a period of all-round development (Zhang et al. 1998).
I personally believe that as far as the examination of the de facto process of development for China’s legal science is concerned, this “politics-law” analytical approach is a relatively appropriate one, for it quite profoundly reveals a dependency quality upon politics or ideology as hidden in China’s legal science on the one hand, while on the other, it has also to a certain extent reflected the fact that China’s legal science has achieved certain development within the limits set by its political framework. Nevertheless, we need to point out immediately that due to this “politics-law” analytical approach having supposed the dependency of China’s legal science upon politics or ideology, or even the desirability of such dependency, any narration through this approach shall in all probability become subject to domination by politics and ideology at different stages. As far as I can see, this is a trilemma of a circuitous relationship among the three parts of “subject-approach-object”, the very existence of which has disabled this “politics-law” analytical approach from seeing clearly that China’s legal science, while not yet overcoming its own quality of dependency, has gradually formulated an orientation of “academic autonomy” (although the achievement of this orientation has to a large extent an unintended result).5 Moreover, this approach is further disabled from exploring other elements than politics or ideologies — elements that may be of greater import for the development of China’s legal science.
In the Introduction to the book Maybe Happening: China’s Legal Science in Transition, Su Li (2004a), as abovementioned, distinguished the three stages of development in China’s legal science, namely the “politics-and-law paradigm” (zhengfa fanshi
, throughout the 1980s since 1978), the “interpretation paradigm” (quanshi fanshi
, throughout the 1990s since the mid-1980s), and the “social sciences paradigm” (sheke fanshi
, from the mid-1990s to the present), which was based on time-sequencing. Moreover, in his analyses, the concept of “paradigm” is at most a “label” that is neither essential nor substantial. However, I believe that in his analyses, there exists at least such a logic that demands our attention: namely that the emergence of different schools in China’s legal science, “even if we emphasize the branches of social scientific theories, was not the result of pushing by any foreign theory as some scholars had imagined. What really pushed this research was social problem and legal practice in contemporary China. … In this process, we have to resort to certain economic or sociological theories that traditionally do not fall into the discipline of law, or practically achieved some conclusions in conformity with the findings of these non-legal studies through personal wisdom. It is social practice that has pushed this development” (Su 2004a: 15). For instance, “the emergence of law as a profession created a decisive precondition for the prosperity of this legal interpretation [namely the interpretation school of law], also a quite good and broad market for the consumption of such products” (Su 2004a: 11); “after over a decade of economic development in China’s society, certain social problems in the transitional period have already manifested themselves. Legal principles that were originally taken for granted also faced challenges from the practice, demanding the science of law to offer answers” (Su 2004a: 12), which in turn created conditions for the “social scientific study of law”. For this reason, as indicated in all these phenomena, “although the science of law has remained an independent academic discipline up so far, it is in fact no longer a self-sufficient discipline” (Su 2004a: 7). Moreover, “the emergence and development of China’s legal science have both been the products of China’s social transition and transformation and by no means disconnected from this historical context” (Su 2004a: 4). Finally, with reference to the American trends of “rendering the science of law increasingly non-legal-scientific” (faxue fei faxue hua
) and “delegalization of” (falü fei falü hua
),6 as well as considering the social conditions or causes that resulted in the discussed phenomena, Su pointed out that “we should even have a more ‘optimistic’ attitude towards the future of the social scientific study of law. … My estimate of the social scientific study of law is based on the rapid development of information technology and information and communication technology, and on the emergence and convenient availability of the findings of more professionalized empirical research. All these factors are at this very moment changing the world we live in” (Su 2004a: 23).
Obviously, Su analysis followed an approach that is different from the analytical one of “politico-legal science”, but instead what I have termed as the analytical approach of “socio-legal science” (shehui —faxue,
). Henceforth, “a development by natural time sequencing”, for Su Li, means an approach that is non-political and attempts to understand the development of China’s legal science from the perspective of societal transition and transformation in China, implied therein an argument of social situations as a decisive force on the development of China’s legal science. Indeed, as for this analytical approach of “socio-legal science” on the development of China’s legal science, it is reasonable to examine it from the perspective of the sociology of knowledge and from that of legal sociology through the relationship between China’s legal science and its societal transitions. For one thing, the activities of knowledge production and reproduction will at varying degrees feel the influence from social or institutional factors.7 Moreover, the societal development in China has indeed influenced upon its legal development in different ways. Nevertheless, even if examined from this perspective, we need to point out seriously that first, although there is only one difference between the following two assertions in terms of wording, namely “the activities of knowledge production and reproduction being influenced by societal factors” and “the activities of knowledge production and reproduction being determined by societal factors”, these two arguments are in fact poles apart from each other, as the latter is no different from a social application of materialism (weiwuzhuyi
). Second, the analytical approach of “socio-legal science”, though with insights into the decisive significance of societal changes for the legal science in China, has also made invisible the fundamental dimension of “politicalness” (zhengzhixing
) as in the development of China’s law/legal system and legal science, and further castrated such significantly influential legal discourses that are anti-political but equally positioned at the level of the logic of politics as “market economy equals economy based on law”, “rights-defending legal science under constitutionalism” and “judiciary independence”.
However, what is more noticeable is that in spite of their difference, the two analytical approaches of “politico-legal science” and “socio-legal science” share one feature in common that demands our attention, namely both have in fact attempted to understand or explicate the development process of China’s legal science from “outside” China’s legal science but “inside” the “political” or “social” structure(s). Moreover, due to their inherent “optimistic” attitude towards China’s political or social development, both have adopted a kind of “progressism” (jinbuguan
) in examining the development of China’s legal science and further offered a positive acknowledgement of the development of legal science in contemporary China. For this very reason, as far as I can see, these two analytical approaches have fundamentally been unreflective or uncritical, neither able to reflect or critique upon their object of analysis, namely China’s legal science, nor to offer a review of or critique on the “political” or “social” structures that delimit or even determine the production or reproduction of legal knowledge in China — a phenomenon that is revealed in both approaches. Moreover, both approaches have also made invisible a more important perspective, namely to examine or critique on the development of China’s legal science from “within” knowledge. For me, such an approach to offer critique or reflection as from the perspective of knowledge, as far as the existing problems concerning contemporary China’s legal science are concerned, is in fact an approach that is of a more urgent need for China’s society, as well as for China’s legal science to exit its current predicament. For one thing, without a reflection or critique on the knowledge paradigm that has dominated the development of China’s legal science, the latter will be deeply trapped in the age of knowledge set by such dominant knowledge paradigms and disabled from escaping on its own from the age per se. Therefore, according to the theoretical topic constructed in this book, I will adopt an “internal” analytical approach of “knowledge-legal science” for reflection or critique.8 Certainly, to adopt such an approach does not necessarily negate the significance for the development of China’s legal science of such Chinese or global factors as politics, society, culture or economy, but rather to suggest that these factors are all part of the larger context from which to adopt this analytical approach, because they are connected with the very views of law held by different scholars during a “problem-led” theorization of these factors.
As I have pointed out in the Introduction of this book, in the past three decades, the development of China’s legal science has gradually unfolded itself through the four grand, mutually intertwined debates, namely “[proletariat] dictatorship (zhuanzheng
) and rights”, “logic and society”, “state and society” and “transplantation and indigenous”. In these four debates, the following theoretical models stood out as the relatively influential, namely “rights foundationalism”, “legalism”, “indigenous resourcism” and “legal culturalism”, as they have to a certain extent constituted the basic topography of contemporary China’s legal science.9 Certainly, the reason for me to choose these theoretical models as the particular objects of analysis in this book include also a consideration that these four models are different or even conflicting, which is precisely required by the purpose of offering a “general” reflection on China’s legal science — a purpose this book aims to fulfil, and by the concept of “paradigm” adopted by this book for analysis.
According to the argumentation arrangement, I will in the following offer an overall analysis of and reflection on “rights foundationalism” and “legalism” — two theoretical models that are poles apart from each other.
2. An Analysis of and Reflection on “Rights Foundationalism” and Its Basic Arguments
As is well-known, since 1978, China’s legal scholarship started what I have termed as a Movement of “Liberating the Legal Science” (faxue jiefang
), mainly by the two directions as follows: one through breaking the shackles of the traditional view of “duties foundationalism” (yiwubenwei
) in imperial China, while the other by unfettering legal science from the domination of the “paradigm of class struggle”. This Movement has achieved a great deal through the discussions of such academic hot issues as “the nature of law”, “the spirit of modern law”, “the rule of law (to govern the state in accordance with law)” and “legal modernization”,10 of which the suggestion and emergence of “rights foundationalism” is one of the greater contributions to academic research.11
Noticeably, the proponents of “rights foundationalism” were initially faced with what they regarded as a problem of “paradox”. “In 1978, the Third Plenary Session of the Eleventh NCCCP in a decisive manner abrogated the wrong line of ‘class struggle as the cardinal guide’ (jiejidouzheng wei gang
) that continued for over two decades, in which stead it made a strategic decision to shift the focus of [government] work to the constructin of socialist modernization. At the same time, this NCCCP emphatically su...
Table of contents
Cover page
Title page
Copyright
Biography
Contents
Foreword to the First Edition
Foreword to the Second Edition
Acknowledgments
Translator’s Note
Introduction
Chapter 1 China’s Legal Science and the “Paradigm of Modernization”
Chapter 2 A Critique and Reflection on the “Paradigm of Modernization”
Chapter 3 The Absence of “China” in Chinese Legal Scholarship: A Case Study of the Legal Research on “Consumers’ Rights”
Chapter 4 Further Critical Examination of China’s Legal Science (1): A Critique of Liang Zhiping’s “Legal Culturalism”
Chapter 5 Further Examination of China’s Legal Science (Part 2): A Critique of Su Li’s “Indigenous Resourcism”
