Chinese lawmaking: from non-communicative to communicative

Abstract

In this thesis I will discuss and criticize different legitimation for lawmaking, including ancient and contemporary Chinese theories, and Western representative perspectives on lawmaking. I will disclose disadvantages of Chinese lawmaking system. As a new research project of Chinese law, I argue that both the traditional and contemporary Chinese lawmaking lacked elements of communication. The top-down lawmaking mode was the reality as well as the dominant theoretical justifications of legislation in China. I believe that the top-down lawmaking mode in China was insufficient in its justifications for legitimacy; neither was it beneficial for increasing the degree of individual freedom and rights. Therefore it is better to absorb positive Western lawmaking elements, especial taking a shift from a non-communicative mode to a more interactive and cooperative mode. Western theories of lawmaking could contribute to Chinese future legal reform. Theories of disagreement and individual freedom have positive contributions to this proposed change. After my introduction and analysis of Western theories, I attempted to escape from pure theoretic discussion about law and legality, and try to provide a practical application of communicative lawmaking in China. Relying on the contributions of Western lawmaking theories, but at the same time realizing their difficulties in their application in Chinese contexts, I believe that Confucianism, a Chinese philosophy of love and law could contribute to a discourse theory of lawmaking. The core of Confucianism, Ren (‘仁’ , loving the people, humanism) provided a possible theoretical background for a discourse theory. Professor Bankowski’s argument for the interplay of law and love, the inside and the outside systems, also initiated a debate for the communicative decision-making, and is thus employed to solve the difficulty of applying Western theories into Chinese contexts. The ‘appropriate’ lawmaking in this thesis refers to a communicative lawmaking mode, in contrast to the non-communicative mode that defended by Chinese legalism and contemporary justifications of lawmaking. I attempt to introduce this interactive and cooperative lawmaking structure to balance individual rights and state interests. This structure would go against the grain of the traditional top-down legislation. In this new structure individuals’ voice could be heard and paid attention to, which is a system of achieving Ren ( humanism).