Rationality and Law of Modern Police Behavior

Author: Lu Jing
Publisher:
Publish Date: 2005-05-01
Features: Rationality refers to the governance of calculable rules and principles. The rationality of law is the soul and spirit of law. The rationality of law has different meanings in different historical periods. In ancient China, rationality was long associated with the concept of "emotion," often shortened to "emotion and reason." In ancient times, legal proceedings emphasized both emotion and law, meaning that legal facts needed emotional consideration to be complete, and simply realizing the value of law would be incomplete. Emotion and reason act like a mirror, testing the justice of the law that appears to be fair. In modern times, after the authority of law was confirmed, rationality mainly refers to the internal needs and expressions of subjects towards laws that have not yet been established, i.e., "rule of law." The rule of law is a humanized moral need and a humanized moral institutional arrangement. The realization of the rule of law means that every action of subjects must be incorporated into the predetermined tracks laid by law, allowing citizens to enjoy the greatest degree of freedom within an ordered legal system.
After the founding of the country, with China's economic system transitioning from a planned economy to a market economy, social life has become increasingly complex. Due to an overemphasis on the instrumental rationality of law, the legitimacy of the instrumental rationality of law has been further exacerbated, often weakening the other values of law, which were already quite fragile in many cases. Therefore, we urgently need a critical reflection on rationality itself and establish a more adaptable, contemporary, and inclusive concept of rationality that aligns with China's productive forces.
Administrative governance is the core issue of the rule of law. For a long time, people's understanding of the principle of administrative governance according to law mainly required administrative subjects to enforce laws based on explicit legal provisions. Due to the complexity of social life and the timeliness of law, "no law, no administration" often led to administrative inaction, as well as abuses such as excessive fees and forced assignments, which distorted or deviated from the principles and spirit of the law. When applying a legal provision, enforcement officials may fail to correctly understand its connotations and extensions, fail to grasp the legislative intent, or disregard relevant legal provisions. As a result, law loses its soul, becomes a rigid dogma, and turns into a mere accumulation of legal provisions. Legal application also becomes a simple and mechanical process of matching legal provisions with certain predetermined scenarios designed by legislators in advance.
Theoretically, the legal basis for police behavior is state-made law. In practice, however, we find that many police actions are based on non-legal norms outside of statutes, such as customary law. Due to the inherent limitations of rigid statutes, they cannot meet the needs of an ever-changing social life, especially in a rural society with a strong feudal tradition like China. Informal legal norms, in addition to rigid formal laws, regulate and standardize people's behavior and social relationships, maintaining and realizing their legitimate rights—customary rights. Customary rights play a certain role in determining or constraining statutory rights, objectively supplementing the shortcomings of statutes. Otherwise, law cannot be trusted or accepted by the people, and the will of the state cannot be implemented. Therefore, in the exercise of police power, relying solely on statutes is insufficient; legal principles and spirit must also be followed. Not only must statutory rights of subjects be respected and protected, but so must the actual rights they enjoy, even if not explicitly stipulated by law but justified by legal principles and spirit.
Any form of rule-of-law construction is inseparable from rationality. Without rationality, there is no order, no rule of law, and no realization of citizens' freedom. The enforcement goal of modern police behavior is to achieve public interests in a institutionalized manner and provide the best public services. With the evolution of rationality in modern police behavior, the composition of police actions has shifted from a single binding act to a composite of binding acts and administrative discretion, leaving some space for the exercise of administrative discretion. Based on this logical premise, when discussing the rule of law in modern police behavior, it is the regulation of administrative discretion. Then, how to regulate and constrain police administrative discretion to achieve administrative expectations becomes a challenge for modern police enforcement.
We believe that in the exercise of modern police power, limiting administrative discretion cannot rely solely on statutes but must follow legal principles and spirit, establishing a society-centered concept. When exercising administrative discretion, the principle of reasonableness should supplement the principle of legality; the principle of proportionality and the principle of choosing means under the same conditions should supplement the principle of administrative governance according to law. Administrative procedures are one of the most active and effective mechanisms for controlling administrative power in modern administration. Controlling administrative discretion cannot rely solely on substantive law but must also rely on administrative procedures. Of course, administrative procedure control cannot be separated from judicial review. Without judicial review, the role of administrative procedures would be significantly diminished. Therefore, the modern administrative control mechanism is a combination of administrative procedures and judicial review, not replacing judicial review control with administrative procedure control. Only in this way can formal rule of law gradually transform into substantive rule of law, thereby establishing the basic framework of modern police administrative rule of law in China.
For a long time, we have been exploring the path of standardizing police behavior and institutional innovation, trying to find a development path suitable for China. The purpose of writing this book is mainly to explore legal application issues under the new concept of police enforcement, aiming to provide a scientific and standardized method for modern police enforcement behavior. During the writing process, this book has referenced the research achievements and materials of many fellow scholars, and I would like to express my heartfelt gratitude once again!