Wang Xu: How Legal Research Serves the Construction of a Higher-Level Socialist Rule of Law Country
General Secretary Xi Jinping’s letter to the Ninth National Congress of the China Law Society fully reflects his affirmation and care for the Society’s role as a bridge, bond, and think tank for China's legal and jurisprudential circles. It also sets forth clearer requirements and goals for jurisprudential research, which merit serious theoretical summation and refinement.
"Actively devoting oneself to the great practice of comprehensively governing the country according to law" can be described as an essential requirement of jurisprudential research. The cause of the rule of law is itself a practice with "built-in theory"; it is a rational activity justified and validated by academic logic rather than mere coercive force. Serving the "construction of a higher-level socialist rule of law country" must be premised upon accurate jurisprudential judgment of the practical situation, a profound understanding of practical topics, and repeated summation of practical phenomena. Jurisprudential research must complete the "conceptual abstraction and theoretical standardization of experience" [1] through the process of observing and participating in practice, constructing a rational cognitive and normative order amidst complex experiences.
In his critique of Rudolf Stammler’s legal thought, Max Weber noted that the scientific character of jurisprudence as a social science lies in its ability to accurately judge the "adequate causation" of legal practice within long-term experience and history. Through normative and dogmatic research, it provides "references for value choices" for the empirical world, achieving the effect of providing "latent causal impetus" for practical development. Therefore, the key to whether Chinese jurisprudential research possesses the character of a social science lies in whether it has a "sense of practice" and "power of judgment"—whether it can form a macro-level problem-consciousness regarding the overall situation of comprehensively governing the country according to law, and whether it can continuously propose explanatory conceptual categories and principles at the micro-level to shape, guide, and regulate practice itself.
In different historical periods, the overall theoretical background and practical situation facing the socialist rule of law country differ. What constitutes a "higher-level socialist rule of law country" is a major judgment that requires rational acuity to grasp the current practical background of comprehensively governing the country according to law as a whole, thereby establishing a holistic theoretical framework. Otherwise, jurisprudential research risks the error of "spatiotemporal displacement," simply raising problems generated in past historical stages or strainedly adopting foreign problems and their corresponding conclusions as our own agenda. This article argues that the "higher-level socialist rule of law country" currently served by jurisprudential research possesses five basic practical characteristics, which constitute the most fundamental framework, problem list, and theoretical premise for research.
First, an ideological atmosphere has basically formed in which "comprehensively governing the country according to law is a profound revolution in national governance." Xi Jinping Thought on the Rule of Law has taken deep root in the hearts of the people as the fundamental compliance and guide to action for comprehensively governing the country according to law. A high degree of consensus has formed regarding the integrated construction of a rule of law country, government, and society. The ideological soil for awareness of rules, procedures, and evidence in both the state and society is increasingly fertile. Social atmospheres that explicitly oppose or slight the rule of law have been basically eliminated, and the risk awareness of those exercising public power regarding violations of the rule of law is steadily rising. Consequently, the focus of today’s jurisprudential research is not "ideological reconstruction" or "value assessment," but rather the discovery of new, deep-seated shortcomings. Researchers today must recognize the imbalance of rule of law development and the insufficiency of rule of law supply, necessitating the establishment of a balanced and sufficient concept of the rule of law. Currently, institutions and organizations of different scales and functions hold different attitudes toward the rule of law; different social relations and aspects of social life have varying demands for it. Differences in economic and social development lead to imbalances in the development of the rule of law, and the supply of legal services may be insufficient due to varying social conditions. Thus, focusing on the balance, sufficiency, and effectiveness of the rule of law is key to jurisprudential research serving the construction of a higher-level socialist rule of law country.
Second, an institutional atmosphere for promoting the modernization of national governance through the comprehensive rule of law is increasingly taking shape. With the goal and "total grasp" [2] of building a system of socialist rule of law with Chinese characteristics, a pattern of promoting the legalization of all aspects of national work has basically formed. Currently, Party and government organs at all levels act in accordance with the law, using a scientific, complete, and standardized system of legal institutions to plan work, promote development, prevent risks, and resolve contradictions, achieving the standardization and normalization of their duties. However, researchers must note that a minority of cases still exist in practice where work is not carried out using rule of law thinking and methods. Theoretical responses are needed for erroneous perceptions such as "legal ways can't get things done, while getting things done ignores the law," or treating the rule of law as "important in speech but dispensable when busy." For an ultra-large-scale country [3] seeking to use law for "governance at a distance" and to manage an increasingly complex and risk-laden community, theory must always respond to the tension between "uniformity and flexibility." Particularly in micro-fields, researchers must propose theoretical solutions to regulate movements that use the law to solidify local or departmental interests, undermine the unity of the legal system, engage in "elastic" workarounds [4], or apply the law mechanically or selectively.
Third, a practical atmosphere for fully protecting the rights and interests of the masses and adjusting social relations through the comprehensive rule of law is increasingly taking shape. With the improvement of the public service system for the rule of law, an atmosphere for protecting legitimate rights and adjusting social relations through law is forming. The awareness and channels for the masses to respect, study, observe, and use the law are growing. However, researchers must see that in the current construction of a rule of law society, there is a phenomenon of overemphasizing "rights awareness" while neglecting "rule awareness," and emphasizing "the rule of law’s guarantee of results" while neglecting its "emphasis on procedure." The social foundation for "trusting petitions rather than law, trusting the internet rather than law, and trusting disturbances rather than law" [5] still exists. The underlying logic of "acquaintance society" (shuren shehui), "favor society" (renqing shehui), and "relationship society" (guanxi shehui) [6] has not undergone a fundamental transformation.
How the rule of law provides a guarantee for establishing a defense mechanism against shocks to the collective social psychology is a new and major topic in current theoretical research. Collective social psychology is a stable and lasting cognitive perception and public emotion formed over time. Its ability to resist external shocks relates both to overall social stability and the psychology and actions of every individual within it. China’s vast population, expansive territory, and complex customs amplify the intensity and uncertainty of such shocks. The rule of law must maintain a harmonious, united, and stable collective psychology while ensuring it does not itself become a source of shocks. Establishing a defense mechanism for collective social psychology is the cornerstone of the "unified" (dayitong) [7] system under the leadership of the Communist Party of China and the fundamental solution for resolving social contradictions. Objectively, it is normal for collective psychology to face shocks in a modern state. Macro-policy issues regarding interest distribution, meso-level law enforcement and judicial management regarding rights and responsibilities, and micro-level grassroots social contradictions all bring shocks and polarization to the collective psychology. Therefore, the state must use legal means to establish a holistic shock-defense mechanism to offset these effects and create long-term, normalized mechanisms for prevention, guidance, and balancing. Only then can "long-term peace and stability" (changzhi jiuan) be achieved.
Fourth, an innovative atmosphere for continuously promoting the comprehensive deepening of reform through the perfection of the legal field itself is increasingly taking shape. Since the 18th CPC National Congress, comprehensively deepening reform in the field of the rule of law has become a high-level consensus. Chinese jurisprudential research must theoretically summarize the various forms of rule of law reform to provide sufficient support for further deepening. In practice, rule of law reform includes: holistic reconstruction (e.g., comprehensive integrated reform of the judicial system); creative cultivation (e.g., establishing the Central Commission for Comprehensively Governing the Country according to Law); inclusive reform (e.g., promoting the development of new quality productive forces represented by the platform and digital economies); integrated optimization (e.g., reform of the national oversight system and the enactment of the Supervision Law); and incremental perfection (e.g., actively and steadily promoting constitutional review and recording and review [8]). Theoretically, we need to further study which fields are suited to which reform methods. Specifically, how to evaluate the effects of reform and whether existing reforms fully conform to objective laws are questions requiring in-depth study by the Chinese legal community.
Fifth, an atmosphere for foreign-related rule of law is increasingly taking shape, coordinating domestic and international dimensions to promote the comprehensive rule of law. Currently, China has made great achievements by coordinating domestic and foreign-related rule of law. The state provides powerful legal guarantees for defending sovereignty, security, and core interests across legislation, enforcement, and justice. However, our theoretical construction and response capabilities regarding basic and emerging frontier issues in foreign-related rule of law remain insufficient. At the level of basic principles, we must systematically extract conceptual categories for foreign-related rule of law. In the fields of sovereignty and state law theory, we must study the "remote regulation" and interference of extraterritorial rules within "large-space orders" [9], breaking through the limitations of geographical and physical space to redefine "territory" and "territorial integrity" in the Constitution and law. At the institutional level, based on the Law on Foreign Relations, we must study the interactions between different departments and fields of foreign-related law and analyze their legal structures and judicial applications. In particular, we need deep theoretical research on how to prevent foreign laws from interfering with China’s standards, behaviors, and interests, exploring the establishment of a foreign-related legal risk analysis and control mechanism covering the entire process of legislation, enforcement, and justice.
(The author is Vice Dean and Professor at the School of Law, Renmin University of China) Source: Chinese Social Sciences Net - China Social Sciences Today Web Editor: Huihui