Abstract
In previous chapters I discussed Chinese theories of legislative legitimation including Confucianism, Chinese Marxism and Chinese Legalism. None of those theories emphasized on communication. In this chapter I will turn to Western theories about lawmaking. Lawmaking was a marginal topic in Western jurisprudence. Classic materials on this topic such as Bentham’s Theory of legislation and Maitland’s study on the early history of institutions were written centuries ago. The Science of Law and Law Making was published over 100 years ago also. Other works explored the historical evolution of law. But those literatures referred to a specific branch of law exclusively. Comparative studies attempted to interpret the relationship between law and politics. Communicative lawmaking although existed in Western legislative practice, lacked jurisprudential debate.
—Act always so that you treat humanity whether in your person or in that of another always as an end, but never as a means only. (Kant)
—The end of the law is peace. The means to that end is war…The life of the law is a struggle, —a struggle of nations, of the state power, of classes, of individuals. (Jhering)
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Notes
- 1.
Bentham was seen as the father of the theory of legislation. His Science of Legislation was major expressed through his three books: Bentham. 1864. The Theory of Legislation. London: Trübner. Bentham. 1891. A Fragment on Government. F.C. Montague ed. Oxford: Clarendon Press. And Bentham. 1948. An Introduction to the Principles of Morals and Legislation. New York: Hafner Publishing Co. The Theory of Legislation was written 200 years ago. F. W. Maitland and F. C. Montague. 1915. A Sketch of English Legal History. New York: G.P.Putnam’s sons. was written a 100 years ago.
- 2.
Floyd C. R. 1898. The Science of Law and Law Making. New York:Macmillan.
- 3.
Such as Anderson J.S. 1992. Lawyers and the making of English Land Law 1832–1940. Oxford: Oxford University Press.
- 4.
Such as Buergenthal T. 1969. Law–making in the International Civil Aviation Organization. Syracuse, N.Y.: Syracuse University Press.
- 5.
Such as Miller M. C. and Barnes J. 2004. Making Policy, Making Law—an interbranch perspective. Washington DC: Georgetown University Press.
- 6.
See Zhongxin Fan and Peng He. 2009. The Contributions and Characteristics of the Legal Works of Liang Qichao. Journal for Legal History Studies16:329–357. see also Qichao Liang. 1902. The Father of Utilitarianism Bentham and his Theory. Xin Min Cong Kan 15:11–25.
- 7.
My search was from the PhD and Master theses data base of Wanfang Data and CNKI Data. Accessed 02 Feb 2012.
- 8.
About Qichao Liang’s contribution, see Zhongxin Fan and Peng He. 2009. The Contributions and Characteristics of the Legal Works of Liang Qichao. Journal for Legal History Studies 16:329–357.
- 9.
J. Bentham. 1948. An Introduction to the Principles of Morals and Legislation. 302. New York: Hafner Publishing Co.
- 10.
A.J.M. Milne. 1973. Bentham and Legal Theory. Bentham’s Principle of Utility and Legal Philosophy. Northern Ireland Legal Quarterly:14–15.
- 11.
Bentham. 1864. The Theory of Legislation. 64. London:Trübner.
- 12.
Two examples he gave were (1) legislation protects private property; (2) legislation resists other morally wrong acts as the offences against the state. Bentham’s theory therefore does not totally exclude morality from a positive theory of law. See Bentham. 1948. An Introduction to the Principles of Morals and Legislation. 292. New York: Hafner Publishing Co.
- 13.
Otherwise ‘the evil of the punishment [by law] would be greater than the evil of the offence’, see Bentham. 1864. The Theory of Legislation. 60. London:Trübner.
- 14.
Bentham. 1864. The Theory of Legislation. 64. London:Trübner. And see also Bentham. 1948. An Introduction to the Principles of Morals and Legislation. 302. New York: Hafner Publishing Co.
- 15.
A connection between law and morality is admitted: law is to promote the greatest happiness of the greatest number. Law and morality are therefore connected by the principle of utility. About the relationship between utilitarianism and morality, see R.B. Brandt.1992. Morality, Utilitarianism and Rights. Cambridge: Cambridge University Press. And R.E. Goodin. 1983. Political Theory and Public Policy. Political Science: 104. see also L. P. Nucci. 2001. The Nature of Morality and the Development of Social Values. 7. Cambridge: Cambridge University Press.
- 16.
J. Bentham, P. Schofield, and J. Harris. 1998. Legislator of the World: Writings on Codification, Law and Education. 1. Oxford: Clarendon Press. Also see Bentham. 1891. A Fragment on Government. F.C. Montague ed. 49. Oxford: Clarendon Press.
- 17.
Ibid.
- 18.
Ibid.
- 19.
Ibid. 53.
- 20.
Ibid.
- 21.
Ibid. 54.
- 22.
Bentham. 1891. A Fragment on Government. F.C. Montague ed. 34. Oxford: Clarendon Press.
- 23.
Bentham believes that if the claims of security conflict with the claims of equality, the former should always be preferred because security is to Bentham the first, the all-important condition of human happiness. The first object of the legislator is to preserve and strengthen the feeling of security, but in so far as is consistent with security; their second object is to further equality. Ibid.
- 24.
M.H. James. 1973. Bentham and Legal Theory. Northern Ireland Legal Quarterly:19.
- 25.
Utilitarianism was the doctrine that focuses on the outcome—the rightness of acts is to be judged by their consequences. J.J.C. Smart. 1973. Extreme and Restricted Utilitarianism. Northern Ireland Legal Quarterly:27.
- 26.
B. Parekh. 1993. Jeremy Bentham: Critical Assessments. 30. London and New York: Routledge. About rule utilitarianism, see R.T. Garner and B. Rosen. 1967. Moral Philosophy: A Systematic Introduction to Normative Ethics and Meta-ethics. 70. New York: Macmillan. Rule utilitarianism was also called restricted or indirect utilitarianism. In stead of looking at the consequences of a particular act, rule-utilitarianism determines the rightness of an act by finding the value of the consequences of following a particular rule. The rule the following of which has the best overall consequences is the best rule. Early proponents were J. Austin (The Province of Jurisprudence) and J.S. Mill (Utilitarianism), see T. Mautner ed. The Penguin Dictionary of Philosophy http://www.utilitarianism.com/ruleutil.htm. Accessed 02 Feb 2012.
- 27.
M.H. James ed. 1973. Bentham and Legal Theory. Northern Ireland Legal Quarterly:37.
- 28.
The influence of the utilitarianism, see G. I. Molivas. 1997. The Influence of Utilitarianism on Natural Rights Doctrines. Utilitas 9:183–202; also see J. Rawls’ criticism on utilitarianism: J. Rawls. 1971. A Theory of Justice. Cambridge, Mass.: Harvard University Press. And J. Rawls. 1993. The Law of Peoples. Critical Inquiry 20:363–368.
- 29.
J. Skorupski. 2006. Welfare and Self-governance. Ethical Theory and Moral Practice 9: 289–309. see also D. Bodansky. 1999. The Legitimacy of International Governance. The American Journal of International Law 93: 596–624.
- 30.
In positivistic point of view, law was nothing but coercive norms. Bentham states that ‘Every law when complete is either a coercive or un-coercive nature. A coercive law is a command. An un-coercive, or rather a dis-coercive law, is the revocation in whole or in part of a coercive law.’ J. Bentham. 1948. An Introduction to the Principles of Morals and Legislation. 302. New York: Hafner Publishing Co.
- 31.
Bentham wrote that: ‘the greater part of men are neither of sufficient strength of mind nor sufficient moral sensibility to place their honesty above the aid of the law. The legislator must supply the feebleness of this natural interest by adding to it an artificial interest more steady and more easily perceived’. Bentham. 1864. The Theory of Legislation. 64. London: Trübner.
- 32.
In ancient Chinese philosophy Taoism, however, law was not necessarily something desirable. The effect of law was negative also. In Dao De Jin, Lao Zi believed that ‘the more the law, the more the thieves’: ‘In the kingdom the multiplication of prohibitive enactments increases the poverty of the people; the more implements to add to their profit that the people have, the greater disorder is there in the state and clan; the more acts of crafty dexterity that men possess, the more do strange contrivances appear; the more display there is of legislation, the more thieves and robbers there are.’ Lao Zi, Dao De Jin. chapter 57. The English edition was cited from http://www.ebigear.com/news-479-62356.html. Accessed 02 Feb 2012.
- 33.
Bentham. 1864. The Theory of Legislation. 60. London: Trübner.
- 34.
Chaoping Xie, was arrested in August 2010 because of his book The Great Migration. He was released on 17th September 2010. Details of Xie’s case see Xiuli Huang. 2010. Nanfang Weekend. September 23.
- 35.
Since the Tang Dynasty, every empire maintained four major forms of statutes: Lu, Lin, Ge, Shi. They can be seen as the criminal code, the administrative code, the detailed rules of the administrative law, and the common norms. Although the 12 sections were changed to seven sections since Ming Dynasty (1,368–1,644), the changed seven sections were also based on the previous twelve sections but in a more logical way, and more related to the ancient Chinese law of Zhou Dynasty (1046–256 B.C.). The seven sections were: (1) Ming Li, general rules (2) Li, rules of the officers (3) Hu, rules of the registered permanent residence (4) Li, rules of savoir-vivre/proprieties/etiquette (5) Bing, rules of the military, (6) Xing, rules of the penal punishment (7) Gong, rules of public works.
- 36.
Peng He. 2005. The Constitutional Thoughts, Efforts and Fate of Carsun Chang. 5. MA degree thesis of Zhongnan University of Economics and Law.
- 37.
After the Qing Dynasty, from 1919 to 1949 China was controlled by several warlords and there coexisted several governments as the Beijing Government, the Nanjing Government, and the Wuhan Government. The Nanjing Government ruled by the Guoming Party controlled the whole country later, but was defeated by the People’s Communist Party of China. It receded to Taiwan in 1949 and was the leading party of Taiwan in the 1950s and 1960s.
- 38.
Weifang H. 2007. Common Law and Chinese Law. Comparative Law Studies. from http://www.hicourt.gov.cn/theory/artilce_list.asp?id=3815&l_class=7. Accessed 02 Feb 2012.
- 39.
See similar proposition in A. J. Toynbee and D. C. Somervell. 1957. A Study of History. Oxford: Oxford University Press. The part about remarkable achievements of civilization came from hardships and difficulties.
- 40.
Yinshi Yu. 2003. Scholars and Chinese Culture. 68. Shanghai: Shanghai Renmin Press.
- 41.
Peng He. 2009. The Father of the Republican Constitution and the Shattered Dream of Establishing Constitutionalism in the Republic of China. Chinese and Western Legal Traditions 7:530–542.
- 42.
Ibid.
- 43.
Hegao Yang. 2000. History of Chinese Legal Thoughts. 24. Beijing: Beijing University Press.
- 44.
Zuo Qiuming. 1993. Zuo Zhuan. Zhaogong Year twenty. Trans. Yang Bojun. 1486. Hunan: Yuelu Shuyuan Press.
- 45.
About natural law theory see J. Finins. 1980. Natural Law and Natural Rights. Oxford: Clarendon Press.
- 46.
F. Hayek. 1982. Law, Legislation and Liberty. I: 35–37. 51–52. London: Routledge & Kegan Paul.
- 47.
F. Hayek. 1982. Law, Legislation and Liberty. I: 51–52. London: Routledge & Kegan Paul.
- 48.
Ibid. 152.
- 49.
F. Hayek. 1982. Law, Legislation and Liberty. vol.1 35–37. London: Routledge & Kegan Paul.
- 50.
Ibid., ‘Thesis: the Law of Legislation’ (Chapter 6), focuses on artificial legislations and is in contrast with ‘Nomos: the Law of Liberty’ (Chapter 5). The rules of just conduct, the ‘nomos’ or ‘law of liberty’, or the substantive law in Hayek’s definition, emerge from the judicial process.
- 51.
Ibid. 73.
- 52.
Ibid.
- 53.
Ibid.
- 54.
Hayek observed that in the second century a Latin grammarian, Aulus Gellius, rendered the Greek terms physei and thesei by naturalis and positivus, from which most European languages derived the words to describe two kinds of laws. The original Greek terms, physei and thesei, mean ‘by natural’ and ‘by convention or deliberate decision’. In this way he differentiated natural law from artificial law. (ibid., 20.) Critics stated that Hayek’s theory was neither in the sphere of natural law nor positive law because it was not a simple dichotomy of ‘natural’ and ‘artificial’; it taked an ‘evolutionary approach’ which was different from the logic precondition of dimidiating ‘natural’ and ‘artificial’, to which natural law and positive law theories all obeyed. See J. Gray. 1986. Liberalism, Milton Keynes: Open University Press. The connection of Hayek’s theory with natural law, especially his Kantian tradition, however, was obvious. See J. Birner, R. Zijp. 1994. Hayek, Co-ordination and Evolution: His Legacy in Philosophy, Politics, Economics and the History of Ideas. 297. London and New York: Routledge. See also J.C.W. Touchie. 2005. Hayek and Human Rights: Foundations for a Minimalist Approach to Law. 218. Edward Elgar Publishing.
- 55.
F. Hayek. 1982. Law, Legislation and Liberty. 20. London: Routledge & Kegan Paul.
- 56.
F. Hayek. 1982. Law, Legislation and Liberty. 122. London: Routledge & Kegan Paul.
- 57.
Ibid.
- 58.
Ibid.
- 59.
Ibid.128–130.
- 60.
Hayek’s classification is different from a traditional public law and private law classification. About Hayek’s classification of public law and the private law, see ibid.131–144.
- 61.
About the tendency of private law transforming to public law, see also M. Tatsukichi. 2003. Public Law and Private Law. 234–251. Beijing: China University of Political Science and Law Press.
- 62.
In 1950s, Keynesian economics, interventionism and socialism were widely accepted. In this era of new liberalism and social democracy, most Western capitalist countries believed that a positive interference was better than free market. Hayek recognized the danger of having a blind faith in Keynesian economics and socialism and wrote series of books to defend the idea of economic liberty. The representative books were: F. Hayek. 1944. The Road to Serfom. Routledge. F. Hayek. 1960. Constitution of Liberty. University of Chicago Press. And F. Hayek. 1988. The Fatal Conceit: The Errors of Socialism. Routledge.
- 63.
See previous discussion on Bentham’s theory: only legislation was counted as law, and that law should be recognized as the same as legislation. Bentham emphasized the prominent meaning of legislation and states in his Of Laws In General that the word ‘law’ was in some extent equal to ‘legislation’. ‘Judging…from analogy, it would naturally be expected that the signification given to the word law should be correspondent to that of its conjugates legislation and legislative power… ’, J. Bentham. 1970. Of Laws in General. 9.London: University of London, Athlone Press.
- 64.
In Hayek’s theory, spontaneous orders could only be discovered rather than designed. F. Hayek. 1982. Law, Legislation and Liberty. 20. London: Routledge & Kegan Paul.
- 65.
Hayek identified himself as a classical liberal, see F. Hayek. Why I am not a Conservative. 1960. The Constitution of Liberty. Chicago: The University of Chicago Press. S. Horwitz and F. Hayek. Austrian Economist. 2005. Journal of the History of Economic Thought:71–85.
- 66.
Common law was recognized as grounded in precedent and local tradition as well as reason; it stressed community. Liberal political theory was based on abstract, rational principles; it stressed individualism. Common law and liberalism both promoted constitutionalism. See J.R. Stoner. 1997. Common Law and Liberal Theory: Coke, Hobbes and the Origins of American Constitutionalism. Lawrence, Kans: University Press of Kansas; also see the synthesis of liberal theory with the common law, in B.P. Wilson and K. Masugi. 1997. The Supreme Court and American Constitutionalism. 52. Rowman & Littlefield. B.Z. Tamanaha. 2004. On the Rule of Law. Cambridge: Cambridge University Press.
- 67.
Anti-positivism as reactions against positivism had two basic forms: the hermeneutic science perspective and the mediating or interpretive structuralist perspective. M. Weber introduced the term anti-positivism. He believed that sociology should be a ‘science’, able to identify causal relationships—especially among ideal types, or hypothetical simplifications of complex social phenomena. As a non-positivist, Weber recognized that the selection and construction of ideal types was itself a subjective process, and realized that, unlike the causal relationships sought in positivistic science, those found between ideal types were not ‘ahistorical, invariant, or generalizable’. See Ashley D. and Orenstein D.M. 2005. Sociological Theory: Classical Statements. 239–241. Boston, Mass.: Pearson Education.See also: I. Oliver. 1983. The ‘Old’ and the ‘New’ Hermeneutic in Sociological Theory. The British Journal of Sociology 34: 519–553. See also: J.A. Standen. 1986. Critical Legal Studies as an Anti-positivist Phenomenon. Virginia Law Review 72: 983–988. And also see: A. C. Wicks and R.E. Freeman. 1998. Organization Studies and the New Pragmatism: Positivism, Anti-positivism, and the Search for Ethics. Organization Science 9:123–140.
- 68.
‘Deconstruction’ was central to post-structuralism, which was an umbrella term that came into use in the 1970’s. Deconstruction was an attitude that doubts human artificial design, including language and legal doctrines. J.M. Balkin. 1987. Deconstructive Practice and Legal Theory. The Yale Law Journal 96:743–786.
- 69.
A reader-response criticism or a reception theory emphasizes the reader and the process of reading rather than on the author or the text. About reader-response criticism, see Buckley W.K. and Bracher M. 1986. Reader-Response Theory. Publications of the Modern Language Association of America 101: 250–251. See also P. Harkin. 2005. The Reception of Reader-Response Theory. College Composition and Communication 56: 410–425.
- 70.
It was also different from Waldron’s thesis that I will introduce later. In Waldron’s thesis, the dignity of legislation presented in the majority-rule principle, i.e., disagreements and diverse opinions. I believe that it was the problem-solving purpose rather than disagreement or diversity that brought dignity to law.
- 71.
Zenon Bankowski. 2001. Living Lawfully-Love in Law and Law in Love. 84. Dordrecht: Kluwer.
- 72.
Taxonomically Homo sapiens—Latin: ‘wise human’ or ‘knowing human’, see Hominidae classification, http://animaldiversity.ummz.umich.edu/site/accounts/classification/Hominidae.html. Accessed 02 Feb 2012.
- 73.
Zenon Bankowski. 2001. Living Lawfully-Love in Law and Law in Love. 119. Dordrecht: Kluwer.
- 74.
Ibid.123.
- 75.
Ibid.130.
- 76.
The famous history of the Three Kingdoms of China (220–265) was solid evidence. Luo Guanzhong. 2008. Romance of Three Kingdoms. 266. Beijing: Remin Publishing House.
- 77.
J. Waldron. 1999. The Dignity of Legislation. 1. Cambridge: Cambridge University press.
- 78.
Ibid. 2.
- 79.
The ‘source thesis’ claimed that the existence and content of law can always be determined by reference to its sources without recourse to moral argument. According to this view, the sources of law included both the circumstances of its promulgation and relevant interpretative materials, such as court cases involving its application. J. Raz. 1979. The Authority of Law: Essays on Law and Morality. 47. Oxford: Oxford University Press. The rule of recognition ‘specifies some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts’. See H.L.A. Hart. 1994. The Concept of Law. 92. London: Clarendon Press.
- 80.
J. Waldron. 1999. Law and Disagreement. 9. Oxford: Oxford University Press.
- 81.
J. Waldron. 1999. The Dignity of Legislation. 146. Cambridge: Cambridge University press.
- 82.
Ibid. 157.
- 83.
Ibid. 23.
- 84.
Keith E. Whittington. 2000. In Defense of Legislatures. Political Theory 28.694.
- 85.
Ibid. 690–702.
- 86.
Ibid. 693.
- 87.
Ibid.
- 88.
Conrado Hübner Mendes. 2009. Is it all about the Last Word? Deliberative Separation of Powers 1 Legisprudence 3: 69–110.
- 89.
Cláudio Michelon. 2006. Being Apart from Reasons: The Role of Reasons in Public and Private Moral Decision-Making. 179. Springer-Verlag New York.
- 90.
Ibid.
- 91.
Cláudio Michelon. 2006. Being Apart from Reasons: The Role of Reasons in Public and Private Moral Decision-Making. 9. Springer-Verlag New York.
- 92.
Waldron wrote that ‘…it strikes me that…‘in a multicultural society, legislators are entitled to insist on the authoritativeness of the text and nothing but the text as the only thing that can be sure has been at the forefront of each member’s legislative endeavours.’ J. Waldron. 1999. Law and Disagreement. 145. Oxford: Oxford University Press.
- 93.
J. Waldron. 1999. Law and Disagreement.85. Oxford: Oxford University Press.
- 94.
J. Austin. 1995. The Province of Jurisprudence Determined. 166. Cambridge: Cambridge University Press. As Cotterell observed, ‘Austin’s theory is not a theory of the rule of law—of government subject to law. it is a theory of ‘rule of men’—of government [and law] as an instrument of power’. R. Cotterell. 1992.The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. 74. Philadelphia: University of Pennsylvania Press.
- 95.
Ge Xiao. 2010. A Review of Law and Disagreement. at http://book.douban.com/review/3350529/. Accessed 02 Feb 2012.
- 96.
Zenon Bankowski. 2001. Living Lawfully-Love in Law and Law in Love. 17. Dordrecht: Kluwer.
- 97.
Ibid.18.
- 98.
Ibid.18–19.
- 99.
I stimulated a role-play discussion of lawmaking in my class of 48 students of Zhongnan University of Economics and Law in 2009. The specific situation of my case was stated like this: ‘suppose you were the passengers of a week-long ship. Before you got onto the ship, all of you passed the health examination so that you were healthy passengers. In the middle of the trip, however, two of you were sick and the only doctor of the ship diagnosed that the disease was new and infectious. One of the sick passengers died and five more passengers appeared symptoms. There were no medicines in the ship and the nearest shore was a two-day trip away. Now you have to decide, what should you do?’ I divided the students into two groups: Group A: those who support the decision of throwing the six sick passengers into the sea, and group B: those who would take a risk of keep the sick until they landed. I let the two groups stated their reasons and then made a decision together. Group A argued that the sick passengers already threatened most passengers’ lives and should be killed. It was not a moral decision but it in the end could be justified for another moral value: the healthy people’s (the majority’s) lives. It was a right decision for the overall situation and also a legitimate defense of the majority (the healthy passengers) against the minority (the sick passengers). If this were the situation of a state, the state might make the same decision that they had made. In similar dilemmas, a nation always gave up few people for the sake of the interests of the nation. Group B argued that the healthy passengers did not have the authority to kill other people’s lives, especially when the sick passengers were not guilty for any offences of laws. Killing them in the name of their disease was immoral and inhuman. If they killed the sick passengers, they murdered their lives and should be punished by law.
After half hour debate, I let my students to vote. Thirty-eight of 48 students made a decision for killing the sick passengers and 10 including the 6 ‘sick passengers’ stood by the minority’s human rights for living. Then I asked them whether they all accepted this decision, the majority’s decision? All of them agreed. Who would do the execution of the sick passengers? They believed that choosing by lot would be appropriate. What if the person who did the execution caught the infectious disease? Students still stood by the rationality of the majority decision and believed that if the person were chosen by the majority he did not have excuses of disobedience. I further asked them what if the person who did the execution faced with the death penalty of murder when the ship landed. Students then argued for a broader vote for the judgment: People should make their decisions based on the specific situation rather than exclusively according to legal texts. Those passengers were put in an extreme situation so that normal laws should not be used in this case. The majority’s decision in that ship was the only justified reason for action. Therefore they should not be punished by normal laws that they would face afterwards.
Then I asked them to shift their roles to do another decision: ‘What if the situation of the case was quite the opposite? Let us suppose the minority, the ten students who voted for the sick passengers are healthy passengers now; and the majority, the 38 students who voted for the healthy passengers are the sick passengers. Now your roles have been changed. What decision will you make?’ They kept silent for a while because the reasons they argued for in the previous situation became a big obstruction of their new arguments. I gave them another half hour to think and then vote for their decision.
Ten students again voted for ‘not killing’ and the 38 students again voted for ‘killing’. The result was interesting and illuminative. According to the majority’s decision, the minority healthy passengers should kill the majority, although the minority was in the beginning against this decision. When the minority did the execution, they were against their conscience of justice and would face the strict legal punishment when they landed. However, if the majority’s decision was a sufficient reason for legitimate decision-making, like they accepted in the first instance, they had to accept this reason and be abided by this majority principle.
If we have doubts on the legitimacy of majority-decision, we may realize that in the first situation the majority probably made a wrong decision. There must be something value in lawmaking except for the majority votes, if we all agree that the minority sick passengers deserve to live in the first case, and that the minority healthy passengers have a right to disobey the majority’s decision in the second. When we consider the Great Cultural Revolution movement that happened in China from 1966 to 1976, we see how wrong lawmaking could be if it was exclusively about the majority’s decision. Multiple opinions of the majority during that era were ideological. Even there were different and opposite voices during decision-making procedures, as long as the majority’s vote was the final decisive standard, multiple opinions would be an inferior factor. The principle that the minority should submit to the majority was not in conflict with the requirement of diversity during the debate stage of lawmaking. If the dignity of justice was only connected with numbers, even if the minority’s opinions being heard, they were not treated seriously. If on the contrary we accepted that justice was irrelevant to the numbers, the principle of majority decision and diverse opinions were not enough for lawmaking.
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He, P. (2014). Lawmaking in Jurisprudence (I). In: Chinese Lawmaking: From Non-communicative to Communicative. Understanding China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39507-9_5
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