Law and China: A Forum on the Frontiers of Legal Theory (Volume 5)

Author: Deng Zhenglai
Publisher:
Publish Date: 2006-08-01
Features: The "Frontiers of Legal Theory Doctoral Forum" 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 Research of Jilin University, hosted by doctoral supervisors and invited experts in 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 legal theory professionals. In terms of the practical implementation of the "Frontiers of Legal Theory Doctoral Forum," I personally believe that we must confront at least a few important issues: , what constitutes the "frontier topics" of legal theory. The answer to this question largely determines the potential significance of the "Frontiers of Legal Theory Doctoral Forum" 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 practical frontiers of law, ultimately reflecting or manifesting the theoretical aspects of contemporary China's and the world's economic, political, technological, cultural, and social lives." 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 "Frontiers of Legal Theory Doctoral Forum" will become fresh blood in Chinese law, and considering the current development situation of Chinese legal theory, I personally prefer to emphasize the points Wenxian pointed out above and discuss them in more detail. First, while the frontier issues of legal theory are indeed the theoretical reflection or manifestation of contemporary China's and the world's economic, political, technological, cultural, and social lives, 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 domains, because legal frontier issues are not the same in different specific civilizational contexts, or in other words, the frontier issues faced by legal scholars in different specific civilizational contexts are not the same. Emphasizing this point is, on a relatively basic level, to require doctoral students participating in the "Frontiers of Legal Theory Doctoral Forum" 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 as Chinese legal scholars. Second, the view that the frontier issues of legal theory are the theoretical reflection or manifestation of contemporary China's and the world's economic, political, technological, cultural, and social lives is based on the premise that "the theoretical frontier and the practical frontier are consistent, synchronized, and mutually refractive." Considering that this issue is related to our identification and definition of the frontier topics of legal theory, it is necessary for us to further question it. Undoubtedly, the above view is based on the fundamental assumption that the construction of theoretical problems is a theoretical reflection of social life. In my opinion, from the perspective of knowledge types, this assumption can be established, because theories that describe or explain social life, even ideal-type theories derived from social life, can all be attributed to the type of theories or theoretical issues pointed to by this assumption. However, precisely in this sense, this type of theory or theoretical issue cannot encompass other types of theories or theoretical problems, at least those that arise from theoretical lines and are unrelated to practical frontier issues. We are not only concerned with various problems in social life but rather are striving to achieve a certain ideal vision or goal in the process of addressing these problems, and to do so, we must have the theoretical frontier issues that arise from theoretical lines and are unrelated to practical frontier issues as our intellectual support. As Cardozo said: "I do not want to exaggerate it, but legal philosophy or other philosophies are explorations of cultural values or speculative interests. What I am concerned with is the relationship between philosophy and life. When a law student begins to enter this field, we should make them deeply aware of the importance of this relationship. You may think that philosophy is mysterious and high in the clouds. But I hope you understand that it can also be down-to-earth and approachable. You may think that stopping to pursue it, to love it, is unproductive and a waste of precious time, and that you should focus on your work. But I hope you and I firmly believe: you are on the path to your goal. Here, you will find the keys to unlocking the latches and codes, and crude tools can never dare to open them. You may think that the pursuit of theoretical and practical ultimate concepts is completely unrelated. This may be true when you just start your career. But when you encounter more important issues, you may find that it is not the study of basic knowledge that is futile, but that it is almost impossible to obtain anything beneficial without studying basic knowledge." It should be noted that the purpose of exploring this issue is, on a deeper level, to require doctoral students participating in the "Frontiers of Legal Theory Doctoral Forum" to also focus as much as possible on frontier issues that are unrelated to practical frontier issues but arise from theoretical lines, and through such efforts to promote the development of Chinese legal theory, thereby providing more helpful theoretical tools for people to address practical frontier issues. Second, and the most critical and challenging, "how to discover and construct" the frontier topics of legal theory we refer to. The reason this issue is critical is that the quality of its resolution will fundamentally affect whether we can achieve the goals of the "Frontiers of Legal Theory Doctoral Forum." The reason it is challenging is that it is essentially a practical issue, and any statements we make about "forward-looking, originality, criticality, anti-authoritarianism, and constructiveness" in relation to this issue are easily reduced to the preaching of "armchair theorizing." However, the existence of this fact does not mean we need not take this issue 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 regarding the relationship between knowledge traditions and knowledge increments. I believe that human knowledge in academia grows and develops from our existing academic traditions, and 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 based on 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 can we 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, except for practical utility—while we know that practical utility is not the only nor 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 reflections 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" regarding the relationship between knowledge traditions and increments requires doctoral students to "return to the classics" before entering the "Frontiers of Legal Theory Doctoral Forum," and through this effort to understand the nature and direction of their own intellectual work. My second "knowledge iron law" is the law regarding the relationship between knowledge limits and critique. I believe that the work we are doing around the "Frontiers of Legal Theory Doctoral Forum" is a knowledge production work, not the propagation or defense of truth. As is well known, knowledge must have its limits, and these limits 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 possess today are understandings 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 human social life phenomena more profoundly and appropriately through the "Frontiers of Legal Theory Doctoral Forum," the constitutive limits of knowledge also provide the necessity for us to critique any previous knowledge. Accordingly, we can say that we must "return to the classics" and critique the academic traditions formed by various classics, 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 them—seems to place very high demands on the "Frontiers of Legal Theory Doctoral Forum." In my personal understanding, the establishment of the "Frontiers of Legal Theory Doctoral Forum" 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 "Frontiers of Legal Theory Doctoral Forum" 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 "Frontiers of Legal Theory Doctoral Forum" is actually an incremental process that requires the collective intellectual efforts of countless generations of doctoral students and supervisors to support and realize. Precisely in this sense, the texts collected in this book by the 2004 doctoral students 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 "Frontiers of Legal Theory Doctoral Forum" or this open and serious effort process can bring more legal scholars into the forefront of legal theory, can promote communication and dialogue within and between the legal community and other disciplines, and even can lead the trend of Chinese legal theory development. This is both the original intention of my agreeing to edit this collection of essays and my expectation for the "Frontiers of Legal Theory Doctoral Forum."