First, the relationship between the rule of law and the construction of China
This is not a false relationship, but a real relationship. It should be noted that the construction of China ruled by law is not only the construction of the rule of law, but also the construction of China or the country. So, what is the relationship between the rule of law and national construction? From the professional standpoint of law, law and rule of law, it is easy to overemphasize the value and significance of rule of law. Of course, the rule of law is extremely important. China's constitution stipulates that we should govern the country according to law and build a socialist country ruled by law. The construction of rule of law can be said to be the lifeline of legal theory and the core pursuit of legal person. However, from the perspective of China's construction or national construction, the rule of law construction is only an integral part of national construction, or a dimension of national construction. So, how should we view the relationship between the rule of law and national construction?
National construction needs to be carried out in all directions. A country in the modern sense, a country in the world system, must first have a strong military. In ancient China, in the pattern of "Huaxia-Barbarians", whether the military was strong or not was also very important, but it was not a particularly critical issue. For example, during the Zhao and Song Dynasties, the military was relatively weak, the ideology and culture represented by Zhu was still very developed, and social life was relatively prosperous. The Riverside Scene at Qingming Festival is a portrayal of the prosperity of social life in that era. The demise of China's traditional dynasty was largely due to the rebellion of the people, not the invasion of foreign military forces. However, in the modern international situation, the significance of military strength to national construction has undergone fundamental changes, and military strength determines a country's real position in the world system. How much discourse power a country has and its share in global resource allocation fundamentally depends on a country's military strength. Therefore, national construction is first and foremost army building. Of course, army building needs laws and the rule of law, because army building also needs rules and needs to be carried out in an orderly manner under the rules. However, the relationship between army building and rule of law building is that rule of law building should serve army building. The construction of the rule of law in the military field and the governance of military behavior by military law should serve the goal of strengthening the military. China's traditional "synonymous with military punishment", about which "synonymous with military punishment", "Mandarin Lu Yu Merchants" said: "A soldier is used for severe punishment, followed by an axe, a knife saw for medium punishment, followed by a drill, and a whip for thin punishment to intimidate the people." Of course, there is not enough training in contemporary China, but there is no doubt that the goal of military rule of law is to strengthen the army.
The second supporting point of national construction is economic construction. Even military construction is inseparable from the support of economic strength. Without sufficient economic strength, military strength will be unsustainable. Therefore, strong economic strength is another core content of national construction. In the modern world system, a strong economy includes production and trade. For many years, there have been many arguments about the relationship between economic construction and legal construction. The dominant view is that "market economy is legal economy" [1]. Although this statement is not detailed enough, the rule of law is ultimately for economic construction. Between economy and rule of law, economic construction is the purpose and rule of law is the means. The basic way for the rule of law to serve the economy is to provide rules and make them effectively implemented, so that production and transactions can be carried out in a sustained and orderly manner.
Military and economy, as the focus of national construction, have been recognized in China as early as the Spring and Autumn Period and the Warring States Period. Legalists' reward for "ploughing war" is a military and economic reward. Legalists attach great importance to the value of law and emphasize "ruling the country according to law" [2]. The specific direction of Legalists' "rule of law" is "ploughing war", which serves the military and economy of the country. Of course, the military and economy of that era were relatively simple, and both the improvement of military capabilities and the growth of economic strength depended mainly on human input. However, even so, Qin, which rewarded the "agricultural war" through the "rule of law", still stood out from the competition of other countries and became the first powerful country in the Warring States period.
Today's world system is different from other countries two thousand years ago. A fundamental change is that besides military and economy, national construction also has an important content, which is science and technology. In the era of cold weapons, military strength has little to do with science and technology, but in contemporary times, military strength is mainly supported and embodied by scientific and technological strength. Whether there are strategic weapons or not and the level of information ability fundamentally determine military strength. Similarly, economic construction is also a problem of scientific and technological construction to a great extent. Why is science and technology the primary productive force? The reason is that economic competition has changed into technological competition, and technological content is a crucial factor in both production and trade. In recent hundreds of years, the reason why the West is ahead of China is that the West took the lead in carrying out the industrial revolution and the scientific revolution, and has always been ahead of China in modern science and technology. Therefore, the third core task of national construction is scientific and technological construction. As far as the relationship between science and technology and the rule of law is concerned, the development of science and technology also needs the protection of the rule of law and law.
If the military, economy, science and technology are regarded as the material aspects of national construction, then there is also a spiritual aspect of national construction, which is mainly reflected in the field of culture and education, or spiritual civilization. Judging from historical experience, Qin's short-term rout is reflected in the backwardness of cultural construction. In the modern sense, national construction cannot but attach importance to cultural and educational undertakings. In today's world, first-class countries have first-class culture and education. High-level universities and research institutions are the concentrated expression of cultural power. Moreover, cultural construction is the fundamental channel for shaping outstanding citizens. What kind of citizens will have what kind of country. National construction depends on citizens, and the shaping of citizens depends on cultural education. Therefore, a century-long plan is based on educating people. Judging from the relationship between cultural education and law and rule of law, it is also law and rule of law that serve cultural education.
National construction includes other aspects besides military, economy, science and technology and culture, but these four aspects are the core of national construction. The relationship between the rule of law and national military, economic, scientific and cultural construction is that the former serves the latter, while the former is the means and tools of the latter. This is the relationship between the construction of rule of law and the construction of China or the country. Then, relative to national construction, does the rule of law have independent value and significance? Of course there is. For example, the rule of law can become cultural wealth, spiritual wealth and cultural and spiritual factors, but in the final analysis, the construction of the rule of law serves national construction, which is the main line and cannot be reversed.
Second, the relationship between the universal rule of law and the specific rule of law.
In the spring of 20 14, a law colleague who came back from Oslo University in Norway asked me: Do you recognize the universality of freedom, democracy and human rights? I said of course I admit it. Freedom, democracy and human rights are all abstract good things. These things, like kindness, virtue and friendship, are what everyone needs. But what is freedom? Is it free to let children urinate in the street? Is it free to park private cars on both sides of city roads? Is it a human right to dance with a trumpet in a community square? How to evaluate the democracy in Thailand today? This is the problem. In the abstract, freedom, democracy and human rights are all positive. However, as soon as it is implemented, problems will arise. "Freedom, how many crimes have you committed in your name?" This sentence is a famous saying left by madame roland, a French politician in18th century, before he was executed in 1793. This famous saying full of paradoxes points out that there is still a huge gap between the ideal of freedom and the practice of freedom.
So is the rule of law. Is there a universal rule of law? Of course there is. The governance of legal rules is a universal rule of law. It is a universal form of the rule of law to have laws to follow, to govern the country, society and government according to law. Moreover, it can be further pointed out that the law as the basis of the rule of law should be universal, open, clear and stable. These requirements are universal. From this perspective, there is a universal rule of law that should be recognized and accepted.
However, it will be very troublesome to measure our real life by the standards provided by this universal rule of law. For example, according to this administrative regulation of the State Council, the abandoned regulations on reeducation through labor fully meet the requirements of "rule of law" in form, and this administrative regulation is also universal, open and clear, and has been stable for more than 50 years. According to the requirements of the universal rule of law, there is no problem with the provisions and practice of reeducation through labor. But today, both the government and the public generally believe that this administrative regulation is no longer applicable and should be terminated. Look at thousands of laws and regulations in contemporary China. Which constitutes an obvious conflict with the requirements of universal rule of law? Hardly. Our country and society are governed by these laws, regulations and rules. But why do many people think that our level of rule of law is not high or even low? The fundamental reason is that the universal standard of rule of law, like freedom and human rights, is an abstract concept and a big word. This "big character" is meaningful and beautiful, but if our understanding of the rule of law only stays on such a "big character", it will actually be of no help. Everyone knows that the rule of law is very good and should be implemented, but how? This is the concrete rule of law. The construction of rule of law in contemporary China should focus on the concrete construction of rule of law, and the construction of rule of law in China should focus on the concrete research of rule of law.
The so-called concrete rule of law and its construction is to promote the rule of law through the solution of specific problems. We should discuss the rule of law from the time, place and conditions, and discuss the specific rule of law in the context. For example, the reform of the court management system, the abolition of the reeducation-through-labor system, and the future of the judicial Committee system are all specific issues of the rule of law. The problems that the public is generally concerned about, such as too high housing prices and too difficult to see a doctor, are very realistic and specific problems of the rule of law if observed from the perspective of law and the rule of law. From the practical point of view, the construction of rule of law can only be aimed at specific problems, and the construction of concrete rule of law is not the construction of abstract rule of law, nor can it be the construction of universal rule of law.
Theoretically, the relationship between universal rule of law and specific rule of law is equivalent to the relationship between natural law and positive law, or even the relationship between justice and king law in traditional China. We should pursue the universal rule of law, which is as indispensable as natural law and justice. However, the universal rule of law, like natural law and justice, can only outline a general direction for us. The universal rule of law is like a banner, which must be hung there, but the success of the revolution cannot rely solely on that banner. The same is true of the universal rule of law as a "big word". We should have such a general direction, but at the same time, we should be clear that the rule of law in practice can only be a concrete rule of law, which can only be pursued by effectively solving specific problems, and can only be a concrete rule of law that can do things well, properly and successfully. This specific rule of law is the object that should be paid attention to in the study of rule of law.
For the current research on the rule of law, there is no need to dwell too much on the concept and idea of universal rule of law. We should focus on the specific issues of the rule of law, and apply Hu Shi's famous saying, "Speak less about doctrine and study more issues" [3]. We can also say that we should talk less about the general rule of law and study more about the specific rule of law. In practice, strictly speaking, there is only a specific rule of law, but there is no universal rule of law.
Marx, a classic writer, was born in the legal profession, and discussed a large number of legal and rule of law issues in his numerous works. However, Marx hardly discussed the concept of rule of law, especially the universal rule of law. Marx's exposition of the rule of law is a concrete problem of the rule of law. For example, the discussion on the censorship of books and newspapers, the discussion on the Prussian forest theft law, Engels' discussion on the British Constitution and so on. [4]. We should learn from the research path of classical writers on the specific rule of law, so as to better promote the specific rule of law construction in contemporary China.
Third, the relationship between formal rule of law and substantive rule of law.
In the construction of China ruled by law, there is still a binary division of formal rule of law and substantive rule of law. Since 1990s, formal rule of law has been widely recognized in the name of procedural justice. For example, some scholars believe that fair procedure is one of the basic levers to promote the change of modern society, and the value and characteristics of legal procedure are mainly reflected in: the restriction of arbitrariness, the guarantee of rational choice, the effect of "self-restraint" and reflective integration [5]. This emphasis on legal procedure embodies the spiritual essence of formal rule of law. According to this academic view, the rule of law is mainly a procedural issue.
In addition to the formal theory of rule of law, there is also the substantive theory of rule of law. Some scholars have found that there are different versions of formal rule of law theory, among which the weaker view mainly emphasizes the rule of law, that is, law is a tool of the government; The relatively strong view of formal rule of law mainly emphasizes formal legitimacy, and emphasizes that legal rules should be universal, futuristic, clear and certain; The stronger view of formal rule of law emphasizes democracy and legitimacy, and requires that the content of the law be decided by consensus. There are also different versions of the substantive rule of law theory corresponding to the formal rule of law theory: the relatively weak substantive rule of law theory mainly emphasizes individual rights, especially individual property rights, privacy rights and individual autonomy; The relatively strong theory of substantive rule of law emphasizes dignity or justice; The stronger substantive rule of law theory emphasizes social welfare, including substantive equality, welfare and the development of the same subject [6].
If such a binary division can be established, how to deal with the relationship between formal rule of law and substantive rule of law? The author believes that these two aspects of the rule of law cannot be neglected. If there is no formal rule of law, the substantive rule of law has no coat and is in a naked state; But if there is no substantive rule of law, the formal rule of law is like a coat, but there is no body. In other words, both formal and substantive rule of law are essential. As far as the construction of the rule of law in contemporary China is concerned, the formal rule of law is the primary goal and the substantive rule of law is the advanced goal. Because of the formality of formal rule of law, it is always easy to handle. There is a view that "emphasizing entity over procedure" is a common phenomenon. "For a long time, we have always valued entities over procedures, while the West has a tradition of valuing procedures. The reason why this phenomenon occurs is not only influenced by China's long feudal legal system, but also an important reason, which is the influence of China's long-term farming culture. " [7] Although this concept is very popular, it is debatable. Because China's traditional "procedural law" has been very developed. China's traditional etiquette has developed to a complicated level, which is essentially a procedural law. According to modern rules and classification standards, funerals, weddings, sacrificial ceremonies and other ceremonies are procedural legal norms. Of course, the procedure in the modern sense (especially the criminal procedure) is not detailed enough in traditional China, but this situation is related to the inherent concept of trial in traditional China. "I'm still alone when I hear a lawsuit. Of course I won't go to court." (The Analects of Confucius Yan Yuan) Confucius means that justice and trial are both inevitable evils, and both are the products of unsuccessful moral education. In other words, it is best not to go to court, even if it is inevitable, it should not be prominent. Therefore, traditional China has not formulated detailed criminal procedure law and civil procedure law because of its inherent legal concept, but this does not mean that there is no mature procedure law. To some extent, the procedural law of traditional China is quite mature.
After decades of legal construction, the procedural law of contemporary China has been developed. Needless to say, procedural law, administrative procedure law and supervision procedure law have reached the degree of overlapping [8]. However, the public is still complaining about the imperfection of the rule of law, and some scholars even think that the rule of law is showing a retrogressive trend [9]. What's the problem? It is that only emphasizing the formal rule of law cannot meet the needs of society. In the final analysis, the rule of law should meet the substantive needs of the public. Therefore, between formal rule of law and substantive rule of law, on the basis of formal rule of law, substantive rule of law is a more advanced goal worth pursuing.
What is the content of substantive rule of law? Some scholars believe that "the eternal theme of the rule of law" is freedom rights [10]. In this regard, this paper holds different views. Although freedom is very important, there is no direct relationship between the rule of law and freedom of rights, because the core of the rule of law is the rule of law. Under the rule of legal rules, human beings can only obtain legal order. Although there is some connection between legal order and individual freedom rights, they can never be completely equal; People who act under legal rules certainly enjoy certain freedom rights, but people can also enjoy another freedom right without laws. For example, in the 1920s, there was neither a unified national central government nor a unified national law in China, which was far from "legal rule" and provided a huge space for many people to move freely. It can be seen that "freedom with law" and "freedom without law", which is higher or lower, is still a question that needs further discussion. Otherwise, why should Zhuangzi, who has been seeking freedom all his life, emphasize "abandoning wisdom to stop thieves"; Jade destroys pearls, and thieves can't afford it; Burning symbols break the seal, while the people are simple; The struggle is balanced, but the people do not dispute; Destroy the sacred law of the world, and the people can discuss it "("Zhuangzi ")?