Abstract
In this chapter I aim to discuss the possibility and necessity of a communicative lawmaking of China. The possibility of Chinese communicative lawmaking relies on the recognition and acceptance of Chinese communitarism or republicanism. Different from individualism and liberalism, Chinese law and philosophy were based on the idea that no one was isolated from others. Chinese people laid much stress on the individual’s status in a family, a community and a society. The status reflected a person’s cognition of himself. This cognition depended on his recognition of others and his relationship with others. Therefore, in Chinese ideology, independent and atomic individuals did not exist.
—By and in himself a man can accomplish very little; he is like Robinson Crusoe on a desert island. It is only in society that a man’s powers can be called into full activity. (Arthur Schopenhauer)
—法治概念的最高层次是一种信念,相信一切法律的基础,应该是对于人的价值的尊重(陈弘毅)
Hongyi Chen: On the top of the rule-of-law there should be a faith; according to which the respect of the value of human bengs should be the base of all laws.
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- 1.
In Chinese philosophy, there were Three Cardinal Guides (ruler guides subject, father guides son and husband guides wife) and Five Constant Virtues (benevolence, righteousness, propriety, knowledge and sincerity). They were all about a person’s status and relationship with others in the society. See also my discussion of Chinese humanism in Chap. 3.
- 2.
Alasdair MacIntyre. 1981. After Virtue. Notre Dame: Notre Dame University Press. See also Michael Sandel. 1984. The Procedural Republic and the Unencumbered Self. Political Theory 12: 81–95. And Charles Taylor. 1990. Sources of the Self. Cambridge: Cambridge University Press.
- 3.
Michael Sandel. 1984. Liberalism and Its Critics. 5. Oxford: Basil Blackwell.
- 4.
Michael Sandel. 1982. Liberalism and the Limits of Justice. 62. New York: Cambridge University Press.
- 5.
Ibid. 175.
- 6.
Alasdair MacIntyre. 1981. After Virtue. Notre Dame: Notre Dame University Press. esp. chap.6, Some Consequences of the Failure of the Enlightment Project.
- 7.
Ibid. 172.
- 8.
Chinese Tian Ren He Yi, may be literaterly translated as ‘oneness of heaven and man’. The origin of the thought of ‘Tian Ren He Yi’ came from Daohism. Literaturely the concept of Tian Ren He Yi expressed in Zhang Zai. Wang Fu Zhi (commentary). 2000. Zhang Zi Zheng Meng. 239. Shanghai: Shanghai Ancient Books Publishing House.
- 9.
Confucians maintained that genuine freedom could be achieved not by securing more options but by overcoming one’s lower desires while spontaneously and intentionally internalizing community norms. Analects II.
- 10.
Mencius. 2002. Jin Xin Zhang Ju II: 35. Meng Zi. 215. Zhuhai: Zhu Hai Publishing House.
- 11.
Culpa in Contrahendo, can be briefly summarized as follows: a party who, through culpable conduct, prevents a contract from being formed or causes the contract to be invalid, should be liable for damages suffered by the innocent party who relied on the validity of the forthcoming contract. Culpa in contrahendo doctrine has strong influence in civil law countries especially Germany and Italy. The doctrine was firstly stated by Rudolf von Jhering in his 4 Jahbrucher Fur Die Dogmatik Des Heutigen Romischen Un Deutschen Privatrechts I (1861) reprinted in I von Jhering, Gesammelte Aufsatze 327 (1881). See also Bao Anh Thai. Culpa in Contrahendo In English Law, http://www.baolawfirm.com.vn/dmdocuments/Culpa%20in%20contrahendo%20in%20English%20Law.pdf. Accessed 02 Feb 2012. See also J. Dietrich.2001. Classifying Precontractual Liability: a Comparative Analysis, 21 Leg. Stud. 153–191. http://www.heinonline.org/HOL/Page?handle=hein.journals/legstd21&size=2&collection=journals&id=155. Accessed 02 Feb 2012.
- 12.
For example, four principles were discovered to offer justifications in this situation in legisprudence.
- 13.
About contract theory and social contract theory, see also Ri Tiangui(Japanese). 2005. Qi Yue De Zai Sheng (the Revival of the Contract). 137. Beijing: China Legal Publishing House.
- 14.
Luc J. Wintgens. 2007. Legitimacy and Legitimation from the Legisprudential Perspective, in Legislation in Context: Essays in Legisprudence. 23. London: Ashgate Publishing Limited.
- 15.
Wintgens. 2005. The Theory and Practice of Legislation—Essays in Legisprudence. 7. London: Ashgate Publishing Limited.
- 16.
Ibid. 10.
- 17.
Ibid. 7.
- 18.
Vlad Perju.2009. A Comment on Legisprudence. Boston University Law Review 89:428.
- 19.
Wintgens. 2009. Freedom and Legisprudence—a More Substantial View: a Reply to Professor Perju. Boston University Law Review 89:1795.
- 20.
About the differentiation between freedom and liberty, see also Hanna F. Pitkin. 1988. Are Freedom and Liberty Twins. Political Theory 16:4. cited from Ying Qi. A Third Concept of Liberty. 2006. 312–345. Beijing: The Eastern Publishing Co. Ltd. Freedom in Hanna’s definition is ‘personal liberties’, ‘private liberties’ and ‘negative liberties’. In this thesis I also use this differentiation between liberty and freedom, to discuss the relationship between an individual’s cognition of freedom and a collective consciousness or unconsciousness.
- 21.
In the above 16 possibilities, 12 of them were certain, 4 of them were not certain (b1ii, b1iii, b2ii and b2iv) and led to another 16 possibilities, therefore 12 + 16 = 28 possibilities in total.
- 22.
Zenon Bankowski. 2001. Living Lawfully-Love in Law and Law in Love. 19. Dordrecht: Kluwer.
- 23.
Ibid.
- 24.
In China, there is a differentiation between ‘private property’ and ‘public property’. As professor Bankowski noticed, it is ‘a vocabulary of the old communist law’. At the same time we should notice that in ancient China, all the property belonged to the Emperor but the property was at the same time ‘public property’ because the Emperor belonged to the public. Not until the Spring and Autume period, did the private ownership of land appear and be admitted. Law was then seemed as the tools for the public rather for the private. Different from the Western property concept, in the beginning property was not ‘private’ to the public in China. about 600 B.C. Shijing. Xiaoya (Gufeng Zhi Shi. Beishan).
- 25.
According to the report of the Ministry of Labor and Social Security 2000, from 1998 to 2000, there were 21,370,000 workers became laid-off. See Chang Kai. 2004. The Right to Work and its Realization in the Market Economy. China Labor 6:4–9.
- 26.
Wintgens. 2004. Legisprudence as a New Theory of Legislation (presentation for the discussion group of jurisprudence at Oxford). http://www.trinitinture.com/documents/wintgens.pdf. Accessed 02 Feb 2012.
- 27.
Zenon Bankowski. 2001. Living Lawfully-Love in Law and Law in Love. 10. Dordrecht: Kluwer.
- 28.
Ibid. 12.
Bibliography
Perju, V. 2009. A comment on legisprudence. Boston University Law Review 89: 428.
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He, P. (2014). Communicative Lawmaking in China. In: Chinese Lawmaking: From Non-communicative to Communicative. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39507-9_7
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