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CHINA LEGAL SCIENCE 2019年第5期 | 社会治理法学“三大体系”的逻辑结构及其进路
日期:20-03-28 来源:CHINA LEGAL SCIENCE 2019年第5期 作者:zzs

ACCELERATING THE ESTABLISHMENT OF ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE AND PROMOTING THE MODERNIZATION OF SOCIAL GOVERNANCE


Xu Kai & Xu Hanming


TABLE OF CONTENTS

I. LOGICAL STRUCTURE OF THE ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE

II.  ESTABLISHING ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE IS A NECESSARY REQUIREMENT OF PROMOTING THE LEGAL SYSTEM WITH CHINESE CHARACTERISTICS AND CONSTRUCTING ‘LAW-BASED CHINA’

A. Establishing ‘Three Major Systems’ in Social Governance Jurisprudence Is the Necessary Requirement of Promoting the Legal System with Chinese Characteristics
B. Establishing ‘Three Major Systems’ in Social Governance Jurisprudence Is a Necessary Requirement of Constructing the ‘Law-based China’

III. THE ESTABLISHMENT OF THE ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE SHALL BE PROMOTED BY INTEGRATED STUDY OF LAW, RULE OF LAW AND JURISPRUDENCE


With the historical orientation for developing the three major systems in social governance jurisprudence in the new era as the theme, the 50 Scholars’ Symposium on Social Governance Jurisprudence at the 5th Law-based Society·Changjiang (International) Forum was jointly sponsored by the Social Sciences in China Press, the China Legal Science Journals Press and the Zhongnan University of Economics and Law, organized by the Law School and the Center of Law Development and Judicial Reform of Zhongnan University of Economics and Law, greatly supported by the China Law Society, the Bureau of Grassroots Governance of the Commission of Political and Legal Affairs of the CPC Central Committee, the Commission of Political and Legal Affairs of the Hubei Provincial Committee of the CPC and the Hubei Law Society and co-organized by eight schools, departments and think tanks from Wuhan University, Huazhong University of Science and Technology, South-Central University for Nationalities, the Studies in Law and Business, the Law Review, the Jianghan Tribune, the Criminal Justice School, the Juris Master Research Center, the Intellectual Property Institute and the Research Center for China’s High-Quality Development. The symposium was successfully held through the joint efforts of more than 40 schools and research institutes of universities including the Party School of the Central Committee of CPC, Peking University, Tsinghua University, Zhejiang University, Wuhan University, Huazhong University of Science and Technology, Jilin University, Nanjing University, Central South University, China University of Political Science and Law, Nanjing Normal University, Central China Normal University, Wuhan University of Technology, Southwest University of Political Science and Law, Hainan University, Hubei University, Hainan Normal University, Guangxi University for Nationalities, Jiangxi University of Finance and Economics, Jianghan University, Wuhan Sports University, Wuhan College, Wuhan Donghu University and Zhengzhou University of Aeronautics, more than 130 experts, James Hamilton, the President of the International Association of Prosecutors, and his wife, Professor Grenville Cross (British nationality) from the University of Hong Kong as well as other internationally well-known scholars.

The speakers at the symposium included Professor Zhang Wenxian (Member of the Party leadership group and Director of the Academic Committee of the China Law Society, Convener of law group of the Office of the State Council Academic Degrees Committee, Senior Professor of Arts of Jilin University and Zhejiang University), Professor Yin Hanning (Member of the National Philosophy and Social Science Academic Committee, Honorary Director of Research Center for China’s High-Quality Development of Zhongnan University of Economics and Law), Professor Wang Limin (Standing Deputy Editor-in-Chief of Social Sciences in China Press), Professor Zhang Xinbao (Editor-in-Chief of China Legal Science Journals Press and Changjiang Scholar), Professor Li Shumin (Director of the Department of Political and Legal Affairs of the Social Sciences in China Press), Chang Ning (Vice Consultant of the Bureau of Grassroots Governance of the Commission of Political and Legal Affairs of the CPC Central Committee), Mr. Li Long (Senior Professor of Wuhan University), Liu Taiping (Deputy Secretary of the Commission of Political and Legal Affairs of the Hubei Provincial Committee of the CPC and the Standing Vice President of Hubei Law Society), Professor Yao Li (Vice President of Zhongnan University of Economics and Law and the philosophy and social science leader of the national Ten-thousand Talents Program), Professor Xu Hanming (academic leader of the Innovation Team for Law-based Building in Social Governance of the Ministry of Education), Professor Wang Xigen (development rights consultant expert of the United Nations, Dean of the Law School of Huazhong University of Science and Technology and Changjiang Scholar) and Professor Qin Qianhong (Changjiang Scholar and Chief Editor of Law Review). They gave important talks and delivered excellent keynote speeches at the meeting and provided discourse guidance and intellectual support to this symposium and the building of the ‘three major systems’ in social governance jurisprudence in terms of to-the-point discussion, making explanation to remove doubts, pointing out the right way and grasping the direction. This article presents a brief and concise summary and comment of the symposium with concentration on the main points for the purpose of building consensus. 


I. LOGICAL STRUCTURE OF THE ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE


The building of the ‘three major systems’ in social governance jurisprudence is required to comply with the fundamental law of philosophy and social science system, the general law of legal system and the special law of social governance jurisprudence. At the national symposium for philosophy and social sciences on May 17, 2016, General Secretary Xi Jinping made it a strategic task to ‘accelerate the development of the philosophy and social sciences with Chinese characteristics’ and formulated such task into ‘continuously pushing forward the building and innovation of discipline system, academic system and discourse system and making endeavor to build a philosophy and social science system covering all dimensions, all sectors and all factors.’ As an active response, many explorations in that connection were made in the legal sector subsequently. The building of the ‘three major systems’ in social governance jurisprudence is advanced under this historical background. It is not only in compliance with the spirits of the speech delivered by General Secretary Xi Jinping on May 17, but also the result of response to the building of the ‘three major systems’ of law.

The discipline system, academic system and discourse system, as the fundamental structure of social governance jurisprudence, are independent from and associated with one another. In some sense, the discipline system is the concise body of knowledge about social governance jurisprudence, academic system is the summary of the theoretical body of social governance jurisprudence and discourse system is the expression of the basic category of social governance jurisprudence. Specifically, the academic system is the basis and the internal impetus to the formation, of the discipline system and the discourse system and plays the core and guiding role in the ‘three major systems’.

Discipline System of Social Governance Jurisprudence. Professor Xu Hanming is of the opinion that the value of social governance jurisprudence lies in its theoretical summary and expression of the fundamental theory, institutional arrangement, implementing methods and performance assessment, etc. of social governance jurisprudence, is the high abstraction of the road, system, culture and practice of the socialist governance with Chinese characteristics and serves as one of the landmark achievements of the theory on rule of law in the social governance with Chinese characteristics. Social governance jurisprudence is the general term of all kinds of scientific activities involving all phenomenon of social governance jurisprudence as research targets and the recognition of the achievements thereof. The current legal norms on social governance in China are scattered in various legal norms of administrative law, criminal law, civil law, social law and other branch laws and relevant provisions in the different branch laws play their respective roles. These different legal norms are at present neither organically integrated nor constitute a unified system of the legal norms on social governance and thus cannot better meet the demand of rule of law in social governance. For this reason, it is necessary to conduct a systematic study on the rule of law in social governance and build the discipline system of social governance jurisprudence. Firstly, the building of theoretical social governance jurisprudence is necessary. The theoretical social governance jurisprudence includes the following disciplinary systems: outline of social governance jurisprudence, principle of social governance jurisprudence, legal history of social governance, history of legal doctrine of social governance, history of legal thoughts of social governance, comparative law of social governance and social governance jurisprudence from the perspective of social science and law. Secondly, the creation of branches of social governance jurisprudence is necessary. Based on its content, social governance jurisprudence can be divided into such branches as basic public service jurisprudence, social autonomy jurisprudence, public-private partnership and joint governance jurisprudence, public security guarantee jurisprudence, social contradiction resolution jurisprudence, network-related social governance jurisprudence, and comprehensive social governance and public security jurisprudence; based on its fields of practice, social governance jurisprudence is divided into such branches as grassroots social governance jurisprudence, county social governance jurisprudence, municipal social governance jurisprudence and network-related social governance jurisprudence. Finally, the creation of application social governance jurisprudence is necessary. The application social governance jurisprudence includes the following disciplinary systems: hermeneutics of social governance jurisprudence, policy study of social governance jurisprudence and evaluation of social governance jurisprudence.

Academic System of Social Governance Jurisprudence. The academic system of social governance jurisprudence is formed centering on the issue of how to conduct study and mainly covers the theoretical guidance of the study, targets and content of the study, raising and argumentation of the propositions, appraisal and application of the study and other relevant aspects. As to the theoretical guidance of social governance jurisprudence, Professor Wang Limin is of the opinion that social governance jurisprudence, as an emerging interdisciplinary subject, should be guided by the series of new thoughts on social governance put forward by the Central Committee of the CPC with General Secretary Xi Jinping as the core and properly contribute to the innovation in the practice of rule of law in social governance and accelerated development of ‘law-based China’. In the opinion of Professor Yao Li, social governance jurisprudence is created and developed under the guidance of the basic principles such as social governance functions, implementing mechanism, governance routes and role of law on society presented by Marxist classical writers, the theory of socialist governance with Chinese characteristics and the practice of General Secretary Xi Jinping’s theory on rule of law in socialist governance with Chinese characteristics in the new era and has its own unique targets of study. Regarding the study targets of social governance jurisprudence, Professor Fang Shirong and Associate Professor Yang Xinyuan are of the opinions that social governance jurisprudence is the totality of all legal norms in respect of social governance activities and mainly meant to regulate various social relations formed by the leading Party, State organs, social organizations, citizens and other subjects in social governance activities, determine and realize the rights (powers) and obligations (responsibilities) of all parties concerned in social governance activities so as to guarantee the standardized and orderly development of social governance activities and ultimately achieve the fundamental objective of social harmony. Regarding the theoretical propositions of social governance jurisprudence, Professor Zhang Xinbao presented that the premise and basis for building the ‘three major systems’ of social governance jurisprudence are the establishment of core category and determination of theoretical propositions which are generalized and summarized by the Innovation Team for Law-based Building in Social Governance of the Ministry of Education and further condensed into twenty by Professor Zhang Wenxian.

Discourse System of Social Governance Jurisprudence. Social governance jurisprudence incorporates law-based discourse in the existing law-based discourse system and achieves the integration of the ‘governance — rule of law’ dual discourses. The exiting law-based discourse is the external expression of formal rule of law and in lack of in-depth and detailed study of substantive rule of law. It is the product of transplanting of western law-based discourse. As a result, the existing law-based discourse is absent of refining and summarization of the practices of social governance in China and is, thus, about the rule of law without content of governance. In the opinions of Associate Professor Wang Yumei, although its emergence was closely associated with the introduction and interpretation of western law-based theory, social governance jurisprudence has gone through the rebuilding process of localization and formed different schools of thought on study of social governance. Thus, it can be seen that social governance discourses are competitive among one another. In this connection, Professor Yin Hanning pointed out that the building of the ‘three major systems’ of social governance jurisprudence should give prominence to Chinese characteristics. That is, attention should be paid to the history of national construction and development of China and the innovative excavation of the long history of governance civilization of China, to the consideration that the current society and economy in China are still in the period of growth and relevant researches on social governance jurisprudence should be closely associated with such particular historical period, and to the inheritance of the social ethics in the rule of law of the social governance with Chinese characteristics and the emphasis of the function and role thereof in the practice of rule of law in the social governance with Chinese characteristics. Based on the above, in the building of social governance discourse system: emphasis is, firstly, placed on the extraction of the discourses in local practices of social governance, by which the attitudes, stances and methods of dialectical materialism and historical materialism are used to pay attention to the progress and make systematic sorting and summarization of the development of rule of law in social governance, such as the law-based development of discourses for governance in China including special governance, comprehensive governance and source governance; secondly, emphasis is placed on the summarization of the discourses relating to frontier issues of implementation of social governance jurisprudence, for example, emphasis on the observation and summarization of Fengqiao Model with integration of self-governance, rule of law and rule of virtue and evaluation of rule of law in social governance; thirdly, it improves the discourses of governance civilization for thousands of years in China, in particular, the roads, system, culture and practical achievements of rule of law in the socialist governance with Chinese characteristics. For instance, Professor Li Long is of the opinion that social governance jurisprudence is rooted in the history of the 5,000-year development of governance civilization in China. He has made innovative research on the governance civilization in ancient China and for the first time summarized the law-based civilization of the governance in thousands of years in China by listing ten outstanding contributions thereof to the human development. In addition, Professor Xu Hanming has summarized General Secretary Xi Jinping’s theories on rule of law in social governance into twelve doctrines.

II. ESTABLISHING ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE IS A NECESSARY REQUIREMENT OF PROMOTING THE LEGAL SYSTEM WITH CHINESE CHARACTERISTICS AND CONSTRUCTING ‘LAW-BASED CHINA’ 


A. Establishing ‘Three Major Systems’ of Social Governance Jurisprudence Is a Necessary Requirement of Promoting the Legal System with Chinese Characteristics


The existing discipline of law was built mainly under the influence of the law of the former Soviet Union and western countries while ‘many theories of western law cannot be completely applicable in China and the unity and the complexity of the law-based practices are ignored in the disciplinary system of law in western countries’. This has resulted in the existence of problems in the discipline of law in China. For example, the overall level of the development of disciplinary system, academic system and discourse system is not high, the capability for academic originality is not strong and academic assessment system is not scientific. To solve these problems, as pointed out by Professor Zhang Wenxian, requires the building of the ‘three major systems’ of law with Chinese characteristics from the perspectives of transforming and upgrading traditional disciplines, developing emerging disciplines and supporting interdisciplinary subjects pursuant to the requirements of the instructions given by General Secretary Xi Jinping.It is also pointed out by Professor Chen Yunliang that the disciplinary system of law means what subjects should constitute such system, the jurisprudence of Party regulations and supervisory jurisprudence have the most distinctive Chinese characteristics in the disciplinary system of law, and it is imperative to build the traditional discipline of law geared to the reality of China, develop the emerging interdisciplinary subjects of law and have the international law take on the mission of the new era for building a community with a shared future for mankind. It is thus clear that the development of new interdisciplinary subjects has become the important content of the building of the discipline of law with Chinese characteristics and is also the path to the building of the discipline of law that gives reflection to the Chinese style and the Chinese characteristics.

A discipline is set up with the function of response and the ‘building of the discipline of law should be in response to the specific practice of the reform in an in-depth manner and show a process of giving reflection to the features of the times and refining Chinese experiences’. An emerging interdisciplinary subject is just the product of the response function of disciplinary setup. The ‘emerging disciplines of law in China inevitably take new concepts and new theories as the form of expression and can become the convenient route for us to obtain international discourse right.’ Social governance jurisprudence, as a new discipline, has the common features of emerging disciplinary subjects and is the typical representative of the latter. On the one side, it is the result of external integration of law with political science, public administration, and sociology as well as other philosophy and social sciences; on the other side, it is the result of internal integration of social governance jurisprudence with criminal jurisprudence, the constitutional jurisprudence and administrative jurisprudence, justice studies and other jurisprudence.

Based on the above, priority should be given to the development of social governance jurisprudence in the building of the discipline of law with Chinese characteristics, which makes it a must to accelerate the construction of the ‘three major systems’ of social governance jurisprudence.

B. Establishing ‘Three Major Systems’ in Social Governance Jurisprudence Is the Necessary Requirement of Constructing the ‘Law-based China’


The Decision of the Third Plenary Session of the 18th Central Committee of the CPC makes the law-based China the objective of legal construction. The ‘law-based China includes not only the rule of law from the perspective of the State, but also the rule of law from the perspectives of the government and the society and is a multi-faceted and full-dimensional concept of rule of law. The construction of law-based China is the construction of law-based state, the law-based government and the law-based society.’ The proposition of law-based China incorporates the law-based society in the strategic system of the legal construction in China and forms the structure of integrated construction of the ‘law-based country, law-based government and law-based society’. To achieve the objective of the construction of law-based society, it is imperative to push forward the ‘governance in accordance with the law at multiple levels and in multiple sectors’ and promote rule of law in social governance. To this end, it is made clear at the Third and Fourth Plenary Sessions of the 18th Central Committee of the CPC that the innovation in social governance requires the improvement of the method of social governance, insistence on governance in accordance with the law, strengthening of legal guarantee, the use of legal thought and legal method to resolve social conflicts and increase in the modernization of social governance.

In summary, the concept of law-based China enriches the content of the legal construction and makes the construction of law-based society become an important part of the construction of rule of law. As a requirement of the construction of law-based society, rule of law in social governance needs to be advanced and, in particular, great efforts are required to promote the ‘governance of society by the Party and the government in accordance with the law, social autonomy in accordance with the law and conscientious observance of law by the people’. However, there are many problems in the construction of law-based society in China so far as the demand of the construction of law-based China is concerned. As pointed out by Professor Zhang Wenxian, the emergence of the contradictions in different phases of social governance has contributed to the lagging of social construction behind economic construction and the lagging of social governance behind social construction in China and the low level of rule of law in social governance has become the vulnerability hindering the achievement of the objective of integrated construction of the country under rule of law, the government under rule of law and the society under rule of law.

Theoretical researches have been done on relevant issues of the rule of law in social governance. However, the existing researches are scattered and unilateral. Therefore, it is necessary to integrate the existing research traditions, respond to the issues of rule of law in social governance as a whole and build social governance jurisprudence.


III. THE ESTABLISHMENT OF THE ‘THREE MAJOR SYSTEMS’ IN SOCIAL GOVERNANCE JURISPRUDENCE SHALL BE PROMOTED BY INTEGRATED STUDY OF LAW, RULE OF LAW AND JURISPRUDENCE 


As pointed out by Professor Zhang Wenxian, legal science in China has entered into the age of jurisprudence and jurisprudence should become the common concern in the law circle. ‘Jurisprudence requires the answers to the questions as to what law is and what rule of law is and, in another word, requires responses to the issues of origin and ontology of jurisprudence and rule of law’. In the opinion of Professor Xu Hanming, the academic leader of the Innovation Team for Law-based Building in Social Governance of the Ministry of Education, the judgment made by Professor Zhang Wenxian is in line with the development trend of the legal science in China and the construction of the ‘three major systems’ of social governance jurisprudence should be placed in such academic development process and emphasize the integrated study of law, rule of law and jurisprudence. This has become the common consensus of the present forum and provides a new line of thinking for the study on social governance jurisprudence.

Giving priority to the study of the laws on social governance in advancing the construction of the ‘three major systems’ of social governance jurisprudence. The study of social governance jurisprudence should focus on the laws on social governance. That is, the focus of the study should be on the legal norms and legal system of social governance. Based on the research of positive law, the content of the study of the laws on social governance is determined and includes what social governance law is as well as the origin, historical evolution and institutional system of social governance law. The study on the legal issues of social governance is the foundation for the building of social governance jurisprudence and serves the purpose of determining the status of social governance jurisprudence as a branch law from the perspective of legal system.

Giving priority to the study of rule of law in social governance in advancing the construction of the ‘three major systems’ in social governance jurisprudence. Rule of law in social governance is about a set of law-based practices in governance in accordance with the law and the study on such set of law-based practices is the study on rule of law in social governance. It is based on the study of the application and implementation of the laws on social governance that the content of the study on rule of law in social governance, i.e., the theory, road, principle and system of the rule of law in socialist social governance with Chinese characteristics, is determined. The study on the issues of rule of law in social governance is the top priority of the building of social governance jurisprudence and determines the theoretical basis and practical source of the science of social governance from the practical and theoretical perspectives of the rule of law in social governance.

Conducting in-depth research on the jurisprudence of social governance for advancing the construction of the ‘three major systems’ in social governance jurisprudence. The jurisprudence of social governance serves as a set of conceptual and theoretical support lying behind, as well as the value basis of, the law and rule of law of social governance. The research on the issues of law and rule of law in social governance should be used as basis for further discovering the issues of jurisprudence behind law and rule of law. According to the semantic analysis of the word jurisprudence made by Professor Zhang Wenxian, the contents of the study on jurisprudence of social governance can be summarized into: reasoning of social governance law, theory of social governance law, method of social governance law, logic of social governance law, principle of social governance law, virtue of social governance law and value of social governance law, among other things. In the study of jurisprudence of social governance, the science of jurisprudence should be the general theoretical guidance and, at the same time, attention should be paid to the specialty of social governance law and the refining of the legal principles of social governance law as a branch law. 


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