陈弘毅:社会法思想与现代中国的法律现代化(英文论文)

——以朱苏力对法理学的研究为例
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进入专题: 社会法   现代化   法理学   成文法   司法体系  

陈弘毅 (进入专栏)  

  

  本文原标题为:Socio-legal Thought and Legal Modernization in Contemporary China: A Case Study of the Jurisprudence of Zhu Suli。中文标题为编者所译。

  

  1.Introduction

  

  Rapid, large-scale and far-reaching economic and social changes have occurred in China since the Chinese Communist Party decided in 1978 that China should embark upon the path of ‘reform and opening to the outside world.’ The changes include, among others, the transition from the socialist planned economy to a market economy, the gradual emergence of civil society, the reconstruction of the legal system (which had been totally devastated in the ‘Cultural Revolution’ era of 1966-76), and the official affirmation of the goal of establishing a socialist Rechtsstaat. These developments have provided a fertile soil for socio-legal thought in contemporary China.Legal sociology was an under-developed field of study in China before the 1980s. From the 1980s up to the present, much progress has been made in the development of a Chinese legal sociology. Western works on legal sociology have been translated into Chinese and introduced to the Chinese academic world.1 Books and articles on both the theoretical and empirical dimensions of legal sociology have been published.2 There are vibrant debates on key issues relevant to the future development of Chinese law. Examples of these issues include (1) the pathway of legal modernization in China,3 (2) the relationship between traditional Chinese legal culture and the quest for legal modernization,4 (3) faith in law,5 (4) civil society and legal development,6 (5) judicial reform,7 and (6) the contextual approach to legal research.8 This chapter, however, does not attempt to survey the whole field of socio-legal thought in contemporary China, for such an ambitious project would probably require a full-length book. Instead, this chapter provides a ‘case study’ of the socio-legal thought of one scholar. The scholar is Professor Zhu Suli, currently Dean of the School of Law at Peking University, one of the best-known legal theorists in China and probably the most original and controversial among them all. It is hoped that by studying his work, which to date consists of over 60 articles (most of which have been collected and re-printed in four books9), one can have a glimpse of the exciting ‘legal revolution’ that is taking place in China today and the interesting theoretical issues raised by it. This chapter will consist of the following parts. Part 2 provides some biographical information on Professor Zhu Suli (hereafter called ‘Zhu’), and introduces his general orientation to jurisprudence. Part 3 discusses Zhu’s thought on law and China’s modernization. Part 4 deals with his work on the relationship between formal law and informal law in China. Part 5 describes his scholarship on the judicial system in China. Finally, part 6 provides an overall evaluation of Zhu’s work, including both its contribution and its limitations. It also highlights the paradox revealed by this case study: Zhu as a committed member of the Chinese Communist Party10 and an adherent to historical materialism on the one hand, and as a believer in the market and Hayek’s ‘spontaneous order’, in Foucault’s understanding of power/knowledge, and in Posner’s pragmatic and economic approach to jurisprudence on the other hand.11

  

  2. Zhu’s jurisprudence: Foundation and general orientation

  

  Zhu was born in Hefei of Anhui in eastern China in 1955. He grew up in the eras of the ‘Anti-Rightist Campaign’ (1957), the ‘Great Leap Forward’ and the ‘People’s Communes Movement’ (in the late 1950s) and the ‘Great Proletarian Cultural Revolution’ (now officially periodized as 1966-1976). Before he gained entrance as an undergraduate to the Department of Law at Peking University in 1978, he had been in the army and had worked in a factory. He graduated from Peking University in 1982. In 1984 he began his postgraduate legal study at Peking University. In 1985 he won a scholarship which enabled him to study in the USA, where he subsequently obtained the degrees of LLM (commercial law and tax law), MA (American legal system) and PhD (interdisciplinary legal study). In September 1992 he returned from the USA and began his academic career in the School of Law at Peking University. In 2001 he took up his present position as Dean of the School. Zhu’s approach to jurisprudence is unconventional by contemporary Chinese standards. How he positions himself on the contemporary Chinese jurisprudential scene can best be seen from his categorization of the types of legal scholarship in contemporary China. He distinguishes between three types of Chinese legal scholarship that emerged after the rehabilitation of the legal system and of law as an academic discipline in 1978.12 The first is what he calls ‘political-legal discourse’, which was the first type of legal scholarship that arose after 1978. Examples of this kind of scholarship are discussions of the nature of law,(点击此处阅读下一页)

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