Legal Review (First Series)

Author: Su Li
Publisher:
Publish Date: 2003-12-01
Features: Tianze not only aims to reflect the interaction in institutional changes but also hopes to be part of the interaction, and even more, it hopes to play a more significant role in the formation of the new order. — Sheng Hong
For a long time, I have felt that the Chinese legal academia lacks academic criticism. The absence of academic criticism is not because the fruits of legal research do not need criticism—everyone knows that there are many academic issues in the legal field, and there is also a lot of private criticism—but because it is very difficult to carry out such criticism in contemporary China.
First, there are some historical remnants or inertia. Criticism was once a weapon to deprive scholars of their political and academic lives, and it still occasionally appears in academia today (I have a recent example myself last month: a reviewer criticized my translation of the "Posner Collection" I started last year for not adhering to the "political civilization" guidance of the 16th National Congress of the Communist Party of China held at the end of last year). This history and inertia have thus brought at least two taboos: one is to be wary of any criticism, especially those with political implications. Whenever such criticism arises, everyone becomes alert and strives to prevent it from happening; the other is that people themselves are reluctant to criticize, since criticism has been tarnished, they consciously avoid doing anything suspicious—this is called self-exclusion.
Another major factor contributing to the lack of academic criticism in law is the nature of law and the characteristics of the legal academia. By its very nature, law is primarily not oriented toward academia but toward problem-solving, resembling technology or craftsmanship more than academia. Even what seemed like scholarly legal interpretation in the past was mostly decisional technique + rhetoric + interpretation (interpretation, "passing on the message"), controlled by one or more authoritative texts. Traditional law, overall, is not based on the premise of knowledge increment but largely focuses on solving problems within the boundaries set by certain sacred texts. Although some legal scholars have raised some theoretical issues, they are not primarily driven by the pursuit of knowledge. This academic tradition makes it difficult to carry out academic criticism in law as is done in other social sciences, and it is also hard to see the development of law.