Legal China - Theoretical Front Forum of Law -(Volume 5)

Author: Deng Zhenglai
Publisher:
Publish Date: 2006-08-01
Features: "The Doctoral Forum on the Frontiers of Legal Theory" has now entered its fifth year, and Zhang Wenxian is its founder. Of course, it is also an institutionalized major academic activity organized by the Center for Theoretical Law at Jilin University, hosted by doctoral supervisors and invited experts in the field of legal theory, and organized by doctoral students each year. The purpose of the forum is primarily to create a free, open, and rigorous academic environment for doctoral students in legal theory, aiming to cultivate high-level talents in legal theory. In terms of the practice of the "Doctoral Forum on the Frontiers of Legal Theory," I personally believe that we must confront several important issues: , what constitutes the "frontier topics" of legal theory. The answer to this question largely determines the potential significance of the "Doctoral Forum on the Frontiers of Legal Theory" in the development of Chinese legal studies. Therefore, I believe it is necessary to first cite the views of the founder of the forum, Wenxian, on this issue: ① "The frontier issues of legal theory are generally the theoretical reflection or manifestation of the frontiers of legal practice, ultimately reflecting or manifesting the theoretical aspects of contemporary China's and the world's economy, politics, science, culture, and social life." ② "The frontier issues of legal theory are generally hot topics in legal research and academic debate, and hot topics are inevitably of widespread concern, discussion, and sustained debate within the legal community." ③ "The frontier topics of legal theory generally have the significance of liberating the mind, updating concepts, and pioneering innovation, thus representing or indicating the direction and trends of legal development." ④ "The frontier topics of legal theory generally contain (explicitly or implicitly) more inclusive and enlightening concepts, or embody new discourses and propositions that reflect the characteristics and spirit of the times." ⑤ "The frontier topics of legal theory generally have a global, composite, and multi-faceted nature." ⑥ "The study of frontier issues generally requires researchers to have new perspectives, new horizons, adopt new thinking, new references, and new methods to form new concepts, new ideas, and new theories or theoretical systems."… It is evident that Wenxian's views above are quite comprehensive as a whole, and each point holds significance. However, considering that the majority of the members of the "Doctoral Forum on the Frontiers of Legal Theory" will become the new blood of Chinese law, and considering the current development situation of Chinese legal theory, I personally prefer to emphasize the points pointed out by Wenxian and discuss them in more detail. First, while the frontier issues of legal theory are indeed the theoretical reflection or manifestation of the contemporary China's and the world's economy, politics, science, culture, and social life, it is worth noting that the frontier issues of Chinese legal theory may not necessarily be the same as those in Western or other legal jurisdictions, because legal frontier issues are different in different specific civilizational contexts, or the frontier issues faced by legal scholars in different specific civilizational contexts are different. Emphasizing this point is, at a relatively basic level, to require doctoral students participating in the "Doctoral Forum on the Frontiers of Legal Theory" to focus as much as possible on the frontier issues of Chinese legal theory as their research subjects, and through such research to elevate the level of Chinese legal theory, thereby making contributions to the world of law. Second, and most crucial and challenging, "how to discover and construct" the frontier topics of legal theory that we refer to. The reason this issue is crucial is that the quality of its resolution will fundamentally affect whether we can achieve the goals of the "Doctoral Forum on the Frontiers of Legal Theory." The reason it is challenging is that it is essentially a practical issue, and any statements we make about "forward-looking, originality, critical, anti-authoritarian, and constructive" in this regard are easily reduced to the preaching of "armchair theorizing." However, the existence of this fact does not mean we need to take it seriously. Personally, I believe that the most appropriate way to understand and explain the issue of "how to discover and construct the frontier topics of legal theory" is to focus on the fundamental requirements of academic research, because discovering and constructing the frontier topics of legal theory is itself a part of academic research. From the perspective of Chinese legal research, I think the most urgent and fundamental requirement is what I call "returning to the classics." Of course, we must strive to "return to the classics" because of the two "knowledge iron laws" I previously pointed out. The first "knowledge iron law" is the law concerning the relationship between knowledge traditions and knowledge increments. I believe that human knowledge in academia grows and develops from our existing academic traditions; without them, the issue of knowledge increments does not exist. Nozick's theory can be seen, to a certain extent, as an increment on Locke's theory, Hayek's theory is basically an increment on the Scottish Enlightenment and Hume's theories, Rawls's theory can mainly be considered an increment on Kant's theory, and today's communitarianism is largely likely to be an increment on Plato's and Hegel's theories. Without the academic tradition formed by the collective intellectual efforts of the sages, what justification do we have to claim that our views on the so-called frontier topics are not issues that have already been thoroughly elaborated by the sages? Where else can we obtain the criteria for evaluating our own views beyond practical utility—while we know that practical utility is far from the only or the most important criterion for evaluating knowledge? How can we know what issues our sages have discussed, or how can we know where we should start? What basis do we have to claim that our thinking and research on the frontier topics we believe in are a contribution to Chinese or world legal theory? Therefore, I believe that the "knowledge iron law" concerning the relationship between knowledge traditions and increments requires doctoral students to "return to the classics" before entering the "Doctoral Forum on the Frontiers of Legal Theory," and through this effort to understand the nature and direction of their own intellectual work. My second "knowledge iron law" is the law concerning the relationship between knowledge limits and critique. I believe that the work we do around the "Doctoral Forum on the Frontiers of Legal Theory" is a knowledge production effort, not the propagation or defense of truth. As is well known, knowledge is always limited, and the limits of knowledge are mainly determined by the constitutive limits of human reason. It is precisely the recognition of knowledge limits that inherently constructs the relationship between knowledge and critique. All the theoretical knowledge we currently possess is an understanding of the various relationships between humans and society, as well as the legitimacy of their existence and expansion, therefore the constitutive limits of knowledge provide the possibility for us to critique any previous knowledge. More importantly, as long as we try to understand and explain the social life phenomena of humanity more profoundly and appropriately through the "Doctoral Forum on the Frontiers of Legal Theory," the constitutive limits of knowledge also provide the necessity for us to critique any previous knowledge. Based on this, we can say that we must "return to the classics" and critique the various academic traditions that constitute them, and only through this "internal critique" can we more appropriately discover and construct the various frontier topics of legal theory in our current life world. Obviously, the exploration of the above two issues—"What are the frontier topics of legal theory?" and "How to discover and construct the frontier topics of legal theory?"—seems to place very high demands on the "Doctoral Forum on the Frontiers of Legal Theory." According to my personal understanding, the establishment of the "Doctoral Forum on the Frontiers of Legal Theory" itself has already set such high demands: on the one hand, linking "legal theory" with "frontier," the purpose is to encourage doctoral students to pursue the sages or to be pioneers in the field of law, or to prompt doctoral students to cultivate a consciousness and character of pursuing the sages or being pioneers in their learning and research process; in fact, what Chinese legal theory particularly needs at present is just such a consciousness and character of pursuing the sages or being pioneers; on the other hand, although the "Doctoral Forum on the Frontiers of Legal Theory" is an effort with high demands for knowledge increments, it is not a one-time, concluding task, but an open, serious, and arduous process; in other words, the "Doctoral Forum on the Frontiers of Legal Theory" is actually an incremental process that requires the collective intellectual efforts of countless generations of doctoral students and supervisors to support and realize. In this sense, the writings of the doctoral students of the 2004 class collected in this book are only one effort in this process, and an effort made on the basis of the efforts of the previous four generations of doctoral students. I hope that the "Doctoral Forum on the Frontiers of Legal Theory" or this open and serious effort process can bring more legal scholars into the frontiers of legal theory, can promote communication and dialogue within the legal community and between the legal community and other disciplines, and can even lead the trend of Chinese legal development. This is both the original intention of my agreeing to edit this collection and my expectations for the "Doctoral Forum on the Frontiers of Legal Theory."