Research On Juzheng's Thoughts On The Rule Of Law

From the perspective of history,the main aim of the legal construction in the period of the Republic of China is to achieve a traditional revival and to complete the modernization transformation of the nation at the same time.Though that aim finally turned to be a failure,it cannot be denied that there exist a lot of famous legal experts who standing at the crossroad of the “Ancient and modern,eastern and western”.They were imprinted with traditional ideology,while shoulder the task of putting the nation in a modern new guise.They were baptized by western civilization while held responsible for the change of ancient China.As the founders of modern Chinese jurisprudence,they laid the groundwork for the construction of the rule of law in China;their thought of the rule of law is a rich mineral that needs to be deeply dug.One of the founding fathers of the Nanjing national government,one of the sponsors of the “reconstruction of the Chinese law system” and the famous jurisprudential expert in modern China ——Ju Zheng(1876-1951)is an important member of this group.The structure of this paper is divided into five chapters except the “introduction “and“conclusion”.The first chapter mainly introduces Ju Zheng’s lifetime and his contribution to the rule of law.He has achieved three major achievements: establishing judicial authority,improving the judicial system and restoring the integrity of the legal right.During his 16 and half years in office,he did a lot of grass-roots investigation,collected opinions from different aspects to promote the judicial decision-making work.These have considerable influence on the rule of law practice and at the same time formed a legal philosophy which achieves the unity of knowing and doing.The second chapter reveals the change of rule of law and the movement of modernity.“Revolution” is a key word in the modernization movement of the rule of law in China.At the crossroad of the “Ancient and modern,eastern and western”,the rule of law in the period of the republic of China was colored with “exploration” and “choice”.It is in this context that the modern rule of law construction is seeking the expression of the era of “modernization“while reflecting on the traditional governance model and facing the impact of “objective jurisprudence” in the west.From the perspective of Ju Zheng’s theory of the rule of law,it is not hard to find that the change of the rule of law is not only the inevitable outcome of historical development,but also the background of China’s blending together of modern andancient time.Under the call of The Times,the transformation of the rule of law has its own internal rational way,which is to construct a task that points to the development of the future law philosophy in the ancient and modern times.The third chapter,Looks at the legal institution of nativism transform from Ju Zheng’s National culture movements like reconstruction of Chinese law.The culture character of legal institution is shown from dual historical effect of international culture transplant and inland aborigines.Ju Zheng is one of the representatives who draw the blueprint of reconstruction of Chinese law.It strongly piles up the legal construction of full nationalism motion and the dream of the age.From the point of Ju Zheng’s view,the characteristic of modernization of legal is neither returning to the ancients nor conflicting to the modern.It is given by the color of ism and politics,which means how to effectively construct and fast mobilize the service to politics construction by legal institution and authority.It is the fundamental agent of the remold of Chinese law;it’s also the basic premise of existence of Chinese law.According to Ju Zheng’s thinking on philosophy of law,the proposition of reconstruction of Chinese law contributes to better understand the national character of legal institution.The fourth chapter is to Judge from the View of Party dominance over judiciary the concepts of era of Ju Zheng’s Judicial Reform.Under the guidance of the "Three People’s Principles" of the founding of the country,the concept of the judicial reform of the Nationalist Government,due to the inherent tensions between the western legal theory and the local party ruling concept,the constraints of historical social conditions,the defects of institutional construction,and the flaws in actual operation,had always been in the conflict between "being" and "actual" of rule of law.In order to implement Mr.Sun Zhongshan’s strategy of governing the country with the Party,expanding the country’s power while also protecting the individual’s freedom,during the period of Xu Qian,Wang Chonghui,and Ju Zheng Judiciary,they had promoted the Party’s legalization,abolished the extraterritoriality and unequal treaties,and emphasized judicial autonomy.Ju Zheng believed from the standpoint of Pure Jurisprudence and Realist Jurisprudence that the judiciary is not a process of mechanically applying laws and deductions to justice,and that the judiciary itself is a process of creating laws.The spirit of legislation might be distorted by the re-creation of the judicial officers in the judicial process,and might be difficult to be reflected.If the Party dominance did not apply,since the judiciary is the process of embodying the abstract legal provisions,the Party’s meaning in the legislation might be completely defeated in the judiciary.The fifth chapter evaluates Ju Zheng’s rule of law from the three levels of "modernization","nationalization" and "partyization".Ju Zheng’s rule of law reflected the course of the Nationalist Government’s legal system construction for more than 20 years from one side.Further,it showed the deep-seated contradictions between the Western concept of rule of law of relative maturity and the modern Chinese indigenous party-governance concept that was still being explored,and also included important academic propositions on the development of the legal system and the innovation of legal ideas.The study of Ju Zheng’s rule of law can lead to the conclusion that the Nationalist Party would not want to build a free legal state like the Western philosophy of advocating individualistic rights,but a“conservative” picture of the rule of law At the same time,the situation that the country faced at the time was out of order and did not have the basic conditions for moving toward the rule of law.In short,Ju Zheng presented a unified,interlaced coordinate relationship in the space of“modernization”,“Nationalization” and “Partyization” with regard to the construction of modern laws and the imagination of nation-state.The impact of modernity is embodied in the field of the rule of law.In fact,it was seeking a distinct discourse system that belongs to the present era on the coordinate axes of the history of the legal system,“ancient,present,middle,and western”.The characteristic of this system is "how the Rule of Law authority under Three People’s Principles effectively constructed and quickly mobilized to serve the political construction." Its construction and positioning of the rule of law naturally have an "artificial" color.While Ju Zheng’s imagination for the construction of nation-state was more about treating the Nationalist Party’s authoritarian rule as the kinetic energy for conserving the rule of law,the Grand Olds of Nationalist Party whom Ju Zheng represented did not pursue the distinction on legal principles between the "being" value and the "actual" value of the rule of law,that had made "nationalization" and "partyization" mixed.Ultimately,it had also been determined that the Nationalist Party and the Nationalist Government could not lead the construction of the rule of law in modern China.The study of the rule of law and its representative figures during the period of the Republic of China,is not only to identify the face of the state and the parties in that era,but also to clearly understand that the construction of the contemporary China’s rule of law,based on a profound criticism and reflection on the previous “judicial independence” and “three powers separation” theories,must uphold the leadership of the Communist Party of China,adhere to the socialist system with Chinese characteristics,implement the socialist theory of law with Chinese characteristics,and follow the road of socialist rule of law with Chinese characteristics.