Study On Procedurized Rule Of Law

To build socialist nation with Rule of Law is a definite guideline of contemporary China's political construction and an epoch-making shift of CPC's governing strategy under its ruling. As a significant breakthrough of the theory and practice of scientific socialism, the guideline raises a new research subject for developing a sound socialist legal system. However, in the process of current construction of Rule of Law, what left to be desired is that we have paid little attention to the procedurization of Rule of Law, which ,actually, made the lag of the nation's legal building. Therefore, study on the subject of procedurized Rule of Law has necessarily become a core issue of Contemporary China's development of Rule of Law, which is also the very topic of this dissertation.Part OneThis dissertation, through introducing the theories by typical Marxism thinkers about their understanding on Rule of Law and their relevant exploration in different historical background during the progressing of Socialism practice, clarifies that the great goal our country set to build a Socialist nation of Rule of Law is an evolution and practice to the Marxism theory in China. Furthermore, the dissertation defines Rule of Law that our nation aims to as follow: A realizing process of comprehensive orderly politics and political structure featuring the supremacy of constitution and laws as well as effective power-dividing and restricting based on the Socialist democracy under the leadership of the CPC.Subsequently, in the sense of theoretical logic, the issue of Rule of Law, as a whole, is split into two main ingredients: substantiality and procedure .Part TwoThe dissertation defines the substantiality of Rule of Law as: what are used to regulate the standard or political anticipation, which have an intention or a target about theoretical descriptions of Rule of Law and system construction in theoretical structure or system design for Rule of Law or a nation with Rule of Law.The procedural meaning of Rule of Law, which is based on the realizing process of Rule of Law, is the issues of theory and system in Rule of Law that combine the vacancies of social actuality and the goal of Rule of Law together. Therefore, it has an evident characteristic of process. The instrumentalism of procedure, which judges a justice only according to a target or a result, stands for the trend of pragmatism in our life and represents extensively. The essence of standardism of procedure , however, is to view the quality of process as its value orientation despite the justice. The functioning background of the different two orientations, obviously, is not what of arbitrariness, the final implementation of modern Rule of Law can't be true whether standardism of procedure or instrumentalism of procedure is over-emphasized on value orientation. Only there is a coordination of the two could an effective construction of Rule of Law be successful. The instability relationship and probability of asymmetry between substantiality and procedure determine that when evaluating Rule of Law, we should put the two into a harmony instead of observing it barely on the basis of the elegance of the substantiality or the justice of the procedure. Rule of Law. as a whole, or a substantiality in other words, its final implementation is impossible without procedures, say nothing of with no standardized procedures. In another view, procedure dominates the degree of Rule of Law.The realization of a society with Rule of Law is a process of developing gradually as well as creating and settling conflicts. In this process, the occurrence and realization of every target in an idea of Rule of Law are the beginning and basis of next target and idea. In such an infinite approaching, Rule of Law bears and fulfills its value concept. Rule of Law is a necessary choice in the practice of human-beings, its essence is procedurization of Rule of Law, which is a life form that Rule of Law could live and grow. As an objective existence, the procedure of Rule of Law shows various formats (including its internal structure and external characteristic) and procedural qualities. Generally, we could conclude it as due procedure and undue procedure, which are divided differently from what by Rawls. Specially, compared to the need of varied subjects who stand different viewpoints, we notice that procedure justice is changing and interior. Procedure could be divided into: Firstly, due procedure; Secondly, proper procedure; thirdly, unjust procedure; fourthly, rascal procedure. Among these, a due procedure should be based on a neutral stance and be a fair process to all subjects ; a proper procedure is a less fair one in contrast to a due procedure limited by realities, and is a comparatively fair process; An unjust procedure is a process that itself imposes discrimination or deceit or inequity or imbalance on some subjects; a rascal procedure is a process whose program bears obvious constraint factor or tort attribute on all or some subjects ( similar with a virus-infected computer program). Only due procedure of law is a procedural justice that is consistent with law.Part ThreeThe dissertation attaches a great importance to discuss the boundary and characteristic on the procedurization of Rule of Law. The author believes that the procedurized Rule of Law is a judgment of value, its content should be some procedural rules and the law system they belong to are of justice. Socialist Rule of Law is a new-era idea, Although, Rule of Law is a unity in logic, it is also a unification of procedure and substantiality. It is substantial in its inner nature and procedural in its outer form. Procedurized Rule of Law is a Rule of Law existence that all social activities (including all sorts of targets or aim concepts) may be realized through due processes and procedurized activities and taken into effect in our life, or may obtain guarantee and relief in procedurized activities. Procedure means the procedural establishment of all political or social activities related to Rule of Law and public powers associated with procedure are under restriction, also, it means that people in the condition of democratic politics that Rule of Law depends on may enjoy more freedom. Thus, still, the kernel of procedural Rule of Law is power restriction and right safeguard. The author puts that Rule of Law is a dynamic procedural process that is evolving from inferior to superior. The observable exterior of this process, then, must be a reality world consists of law procedures acting as basic units.The structure characteristics of Procedurized Rule of Law features below: firstly, due procedure is the essence and life form of Rule of Law. Secondly, procedure itself, even that what stands for a sheer procedural justice is still a conflict unification of substantiality and procedure. Thirdly, procedure itself is unification too. Over recent years, many scholars have argued the Rule of Law in China from different views, most of them sensitively noticed that the build of a SocialistRule of Law is a gradual process. Yet, little about the procedural attribute of Rule of Law has been clarified. The author believes that the process of Rule of Law is necessarily a process of procedurizing of Rule of Law, and only in which could Rule of Law possibly be observed and realized.The Socialist Rule of Law construction in our nation carries its characteristics due to the Socialism nature and political foundation of Socialist people democracy system. Sticking to the leadership of the CPC , to foster a value concept of equity and justice, and to scientifically preset an open and transparent procedure with a relative enclosure are the remarkable features of Socialist procedurized Rule of Law.Part FourThe dissertation illustrates the link between law and the two subjects whose properties varies by arguing the relation between rules and power, temporarily, we may define the first kind (the crowd and its members) as right subject or private right subject ( defined as that because it is a traditional concept, besides, when the crowd is abstracted as people and commissioned their rights out into public powers, they need to assure the ownership of these powers so as to protect their benefits and freedom.) , we may also define the second kind of subject (public power system and its members) as power subject or public power subject. The social relation between equal subjects is, namely, an equal social tie between or among right subjects, rules of law used to adjust this field must show two features : one is the assurance to equal rights, another is the bound and restriction to freedom. Relations among right subjects are ties derived from law among the administrators of the nation or society, they have different attributes or power ranks because of the distinction of work divisions. Concrete power content comes into being because of law, ends up under law, and persists in its boundary due to law. It mustn't works at will without an appointment by law, including not to surpass the limitation that law regulated, not to change the ways that law designated, not to give up power that law appointed. So, in a macro view, what we see about procedural Rule of Law is just a construction and realization in terms of different political principle in the two fields.Law is split into power rules and right rules that vary each other, which only observed the different regular systems of public powers and private rights which are distinct objects that law adjusts. That is not enough for the formation of a nation's law system, for rules, as a whole, have the rest of features that are in need of notice. The author considers that another issue concerning the features worthy to be noticed and reviewed is the means that law works on its objects . Its principles and means that act on people are basically identical whether it functions in power community or in civil (right) community. They are two:One is to judge a behavior in its nature (quality), and then give an attitude of agreement or denial, and define a result.Another is to direct people's behavior dynamically, regulate the dynamic process of behaviors, tell people how to behave and confirm its risk.The former belongs to what said in tradition: to ensure right and duty ( based on the analyses above, the author doesn't agree with it entirely and believes that the concept about the use of law in power community should be modified as law distributes powers and duties). It is an adjustment way that law basically functions. And law applies another adjustment to direct people how to act a behavior concretely by singling out those what evidently take on a public feature and by forbidding unbending actions. Law regulates that the actor could only act in a lawful way(including the behavior's mode, object, time, location etc). We call the rules existing in the first adjustment form as substantial rules, and the second kind as procedural rule.The two divisions about the rules of law make the two main sorts of law which have both distinctions and overlapping. Yet there is still another important distinction what we need to notice, that is the forces from rules are not the same when they regulates people's behaviors. The author thinks that the probability to differentiate rules and set up a scientific law system based on it, and to build a mansion of rules which bears an internal tie and a logical order, basically, should be determined by the three standards above. Taking a coordinate as an example, the author, herein, illustrates that there also exists an issue of coordinate in the construction of the procedurized Rule of Law. The three-dimensional coordinate can illustrate the whole composition of Rule of Law phenomenon, in which the author see the law departments that adjust the relations between equal right subjects as a transverse coordinate axis, and see what adjust powers or rights objects that are unequal as lengthways coordinate axis, and the principles and rules by which the constitutional law adjusts the relations between the power subjects and right subjects, the rules that administrative laws consist of to administrate the society, the rules that adjusts the relation between suit and trial, and all the relations linked to power subjects and right subjects in the whole law departments as a vertical coordinate axis. And that the meaning of procedurization lies just in another latitude that is not able to be changed-time. The law system featured the coordinate system interlacing of the transverse and lengthways as well as the vertical axis is enough to compose a general law phenomenon of our Rule of Law construction in a statically three-dimensioned sense, by which Rule of Law could probably complete its mission of rule-making. Certainly, their essence could only be achieved through orderly activities, therefore, procedurization is their natural feature and they are the fundament rules of procedurized Rule of Law.Part FiveIn addition, based on the formation of a rule system, the ordinary law systems what implement laws and the systems to organizing judicatory which ultimately determines the realization of laws are acting as an important role in the construction of Rule of Law. If Rule of Law is viewed as a living life, then, rules are its skeleton, and the ordinary law systems and judicatories are its vessels. Rule of Law is a virtual life in the case that there are an effective distribution as well as a cubic existence of rules and all the skeleton and vessels are healthy. When we take a closer look at its formation of existence, we could find that its different two statuses - stillness and motion are in coordination.Taking the notion on ecological system and ecological environment as an example, the author assumes Rule of Law to be an ecological system, in which law works in a special environmental influence to achieve its own goal. Law activities, however, also continuously impose an impact on its surroundings. After long-term interaction, it results in a relatively stable status which has some function outside the property of law between the regional law activities and its environment, and between law activities each other too. Hereby, the ecological environment of Rule of Law could also be considered as a whole consisted of those that may impact on law activities including the idea that the essence of Rule of Law culture is a procedurized one, and a democratic and orderly political environment are the political assurance of procedurized Rule of Law, and a multi-ingredient and developed market-oriented economy is the soil and cornerstone of procedurized Rule of Law.The author, at the same time, claims that the progress of procedurized Rule of Law is a process evolving from elementary to advanced, a procedural activity and completion process from shallow to deep, coarse to fine, inferior to superior.In the end, the author points out some problems and their causes related to the building of Rule of Law in China, and puts forward some suggestions and ideas for solution.