Introduction

Abstract

The theory of communicative democracy was not popular in Chinese debates of lawmaking theories. As I will discuss in this book, the theory of democracy is translated into a representative system, a system that the minority is subordinate to the majority. It is a rule-based system and actors in this system are under an obligation to follow the rules, and they take little participation in making rules. However, as Professor Zenon Bankowski argued in his book, ‘ Democracy should be seen as to do with communication and not necessarily with representation ’. Representative lawmaking is not equal to democratic lawmaking unless it makes communications possible. My book is to argue for a communicative lawmaking mode, in which people should be part of the construction of the ‘Enterprise of Law’. The traditional non-interactive and top-down lawmaking mode made contributions to the maintenance of the social order in traditional China. It also promoted efficiency in the execution of law. It, however, faces difficulties in the justification of the authority and legitimacy of law, especially ‘the law of the society’ in contrast to the official law. The traditional Chinese legal system was a closed system that made rule-following the primary obligation of people. It, however, failed to justify the morality of rule-following. In the old system, rule-following was a plain fact of obligation rather than an individual’s moral decisions. Lawmaking therefore led to a fact of passive acceptance of law. The communicative lawmaking mode in this book aims at transforming this passive acceptance into an active ‘exchange’ mode. In this dynamic mode, lawmaking and ‘the empire of law’ should not be a closed but an open system.