Formation And Its Reasons Of Legal Instrumentalism

Legal instrumentalism has profound philosophical background, deep theoretical origin and rich practice basis. In order to accurately reveal the essence of legal instrumentalism and provide useful reference and inspiration for construction of socialist legal system in present China, this paper will sum up systematacially the form of our legal instrumentalism from four dimensions including the Philosophical basis, origins of the concept, political bases and modern practice. This paper mainly applied the historical and comparative analysis methods. It will helps us to solve the problem about the road of the law rule by tracing the history footprints.The article is divided into four parts. The first section elaborates the philosophy principle of Chinese legal instrumentalism, according to the idea of simulating nature world, the idea of morality and implements and the theory of original evil of human nature from pre-Qin philosophy.The discourse on the idea of simulating nature world is aimed at explaining that the intuition thinking in images results in the lack of rational thought.The discourse on the idea of morality and implements is aimed at explaining why law acts as implements isntead of morality.The discourse on the theory of evil nature is aimed at explaining the ethical reason that law administers people as a kind of implements.The second section chooses the two important branches of Chinese legal thought, pre-Qin legalists and Confucianism of Han dynasty, then elaborates the theoretical origin of Chinese legal instumentalism.The third section expound the ancient Chinese political systems since Qin and Han Dynasties, and by contrasting with the plitical systems in ancient westen, states that the lack of restriction on supreme power (kingship) is the political factor causing the Legal instrumental!sm.The fourth section elaborates the practice of legal instrumentalism in socialistic Soviet Union and China.On the basis of the different objects which the legal instrumentalism services for, the author divide the chinese legal practice since the foundation of the state into two different periods, under the party standard and under state standard. And the behavior of the legal instrumentalism of the ruling party during these two periods is discussed respectively, and is aimed at reveal the harm of this kind of legal instrumentalism.This article thinks that in order to deracinate the legal instrumentalism, at first, we must deepen the polity reform, and one of the most important things is to achieve the legalization of political activities. Secondly, we must cultivate the strength of self-government of society, to improve the way of the people’s association and autonomy as soon as possible, and to break the mode of comprehensive controls by the nation to the society. The last is to assign the greater power to the judicial organ, at least not less than the power of the administrative organ.