Yang Zhaolong: Selected Legal Writings

Author: Yang Zhaolong
Publisher:
Publish Date: 2000-02-01
Features: Excerpt Forwarding the nation is something that forward-looking countries do not take, such as fascist states, as a clear example. This view gained considerable sympathy domestically before and in the early years of the War of Resistance, and may now be despised by many, but there must still be a portion of people who cannot forget it. Therefore, it is necessary to offer some critique. We believe that no matter what ideology a country adopts, it cannot do without organization and order; to have organization and order, there must be several norms to serve as standards for everyone's behavior. Among these norms, one is law. A country's ideology may change, but to ensure that the new system produced by the new ideology—its new organization or order—continues to exist, there must be some norms to constrain or guide people's lives and actions, thereby maintaining or promoting this system. Such norms are often characterized by revolutionary tendencies and are not easily found in inherent customs, religion, or morality, so most of them are laws newly formulated by the state. In other words, no matter what ideology a country adopts, it cannot do without law; to make law effective, it cannot do without the pursuit of the rule of law; the content and spirit of the law may differ, but the concept of respecting and abiding by the law should be the same. German public law scholar Otto Koellteutter discussed the constitutional principles under the National Socialist party-state when he said the following: "The state and law are the forces of national life. Their value and significance come from their utility in national life. Therefore, the state is a way of political life for a nation. This way of political life is achieved through the power of legal order. A politically managed common world requires an organized way of life. This organization was initially promoted by the state and its powers. However, with state power, there must be legal order combined with it to form national life. Because only power without law leads to arbitrariness. The so-called 'national perspective' only recognizes loyalty to national leadership; in a nation centered on the nation—law is a necessary standard. Without this standard, sound political organization cannot be produced. The necessary close relationship between the state and law is shown by what we call the 'rule of law state.'—Therefore, in a nation as meticulous and acute in the concept of the rule of law as Germany, the 'rule of law state' holds eternal value." (See his work German Constitutional Law, published in 1935). Whether Koellteutter's views are now followed by the war-mongering Hitler and his followers, and to what extent, we can naturally imagine. However, it is certain that this view was agreed upon by the National Socialist party when Hitler and others were still rational (i.e., in 1935). This proves that no matter what ideology a country adopts, unless its rulers have reached a state of madness, they are compelled to uphold the rule of law domestically. Some may argue that many Western scholars now advocate replacing the "rule of law state" with the so-called "cultural state" (kulturstaat); this shows that the rule of law is no longer in line with modern trends. Indeed, this view is quite popular in Germany, and was advocated by figures such as Fichte, Hegel, and the late neo-Hegelian legal authority Karl Koeler.