On The Studies Of The Chinese Jurisprudence In The "State-Society" Framework

There is"the anxiety of explaining China"in the Chinese academic field today, the Chinese researchers are struggling in the chink of the East-West conflicts , they are not only concerned with the development of the Chinese social science, but also concerned with the destiny of China in the world structure; They reflect the relations of the western modernity and the Chinese thinking, and try to save the crisis of the Chinese social science to come out from the difficulties made by the modernity in China. In the background of the globalization and in the process of the Chinese modernization, the Chinese jurisprudence during the transformation is also faced with the challenges and chances, to some extent the way out of the Chinese jurisprudence depends on the researchers'conscious reflection and criticism on the theoretical frameworks or modes by which the tendencies of their studies are governed, and forms a"collectively clear sense". Since the reform and opening to the outside world over 20 years, the development of the Chinese jurisprudence has shown the Chinese theorists of law don't have consciously reflecting senses for the limits, the premises or hypotheses of their analytical frameworks, so to a large extent the legal studies can't well take hold of the Chinese realities and even can't further the development of the Chinese rule of law in essence. The studies that the theorists use the civil society theory and the"state-society"framework to do are closely related to the transformation of the Chinese state and society; at the same time, the studies also cater to the developing tides of the revived global civil society theory, the Chinese theorists of jurisprudence examine and reflect the present situations of the construction of the Chinese legal systems, and they seek to realize the rule-of-law state and the rule-of-law society on the basis of building the Chinese civil society. So the"state-society"framework is used by the Chinese theorists based on the premise that they recognize the prime hypothesis of the western modernity pattern. Because of the actual need of constructing the rule-of-law state, the studies of the Chinese theorists of jurisprudence in the"state-society"framework are generally in the building process without the reflecting sense, that is to say, they don't doubt the governing ideas and right of their analytical frameworks.This paper mainly concerns on the functions or effects of the"state-society"framework in the Chinese studies of jurisprudence, reflects the limits, hypotheses and governing ideas, reveals the problems of the Chinese studies of jurisprudence in the framework, and provides a possible direction to make the Chinese studies of jurisprudence in the"state-society"framework get rid of the difficulties. The reflecting study of this paper is one part of the chief task of constructing"the Chinese jurisprudence in the global structure", and the chief task is the reflection and criticism on the governing ideas and theoretical premises of the present theoretical modes or the frameworks of the thinking. The reflecting study of this paper has important meaning for the Chinese studies of jurisprudence to the task of opening a new era and has active functions for the practice of the development of the Chinese legal systems and the forming of the legal order. In view of these, the paper is divided into three parts: introduction, text and conclusion.The first part is the introduction, in this part I raise the questions to be studied and give the reference framework, limit the questions to be discussed, explain the origin and meaning of the"state-society"framework, define the concepts of the state and society, and set up the approach of analysis. What the functions or effects of the"state-society"framework in the Chinese studies of jurisprudence are, what problems the Chinese studies of jurisprudence in the framework have, and why the studies have the problems, these are the principal propositions of this paper. This paper seeks to examine the functions, theoretical premises and limits of the"state-society"in the Chinese studies of jurisprudence from the viewpoint of the reflection and criticism by such a reference framework——thinking of the modernity and the relations between the production of knowledge and the social order, and discusses the problems of the Chinese studies of jurisprudence in the framework.The second part includes five chapters. In the first chapter I sum up the present situations of the Chinese studies on civil society and the Chinese studies of jurisprudence in the"state-society"framework, investigate the background of how the framework is linked to the China studies and the Chinese studies of jurisprudence, analyze the purpose, the actual and theoretical questions, meanings, main controversies and the problems for the use of the framework by the Chinese theorists, and estimate the whole situation of the studies of jurisprudence in the framework. In the second chapter, I summarize the developing sequence of ideas of the western civil society theory and the"state-society"framework, and divide the history ups and downs of the modernity and the western civil society theory into three stages. On the basis of clearing the background of the revived western civil society theory and the concepts, I discuss the key questions of the western civil society theory governed by the ideas of the modernity, by which I explain that the western civil society theory is formed by the western theorists according to the western experiences and their problems in the time and place., and indicate the development of the modernity and civil society theory in the west is chronologically a process of the spontaneity. By the discussion of the first chapter and the second chapter, I think the actual problems, the starting point of the argument and the purposes are different for the Chinese theorists of jurisprudence and the western theorists when they study on the civil society theory and use the"state-society"framework to analyze. But whether the studies on the civil society of China or the Chinese studies of jurisprudence in the"state-society"framework, they view the western pattern of the modernity or the western mode of the modernization development as the common hypothesis and the pursuing of values.The third chapter,the fourth chapter and the fifth chapter are the core of this paper. I reflect the"state-society"framework by reflecting and criticizing the modernity in the third chapter, and analyze the problems of the Chinese studies of jurisprudence in the"state-society"framework. The studies on the civil society of China are governed by the pattern of the modernity which follows the viewpoint of the"traditional-modern"dichotomy,and the Chinese theorists view the dual mode of the state and the civil society as the universal mode of realizing the modernization, so they ignore thinking of the ideas of the modernity governed by the civil society and the"state-society"framework. The applicable scope and effect of the"state-society"framework are limited: on the one hand, that the state and society are seen as the analytical units rightfully is confined to the internal viewpoint and it ignores the state's position in the world structure; on the other hand, such analytical units as the state and the society show the tendency of entirety and entity, and their internal differences and conflicts are ignored. Then I reflect the theory of rule of law on the basis of the civil society by analyzing the introduction of the"society"dimension and the alteration of the theory of rule of law since the reform and opening in China, and indicate that these theories of rule of law view the western modern modes of rule of law as the standards. At the same time, there are many problems in the studies of the Chinese jurisprudence: on the one hand it is because the theorists of the Chinese jurisprudence don't reflect the framework so that their studies governed by the western ideas of the modernity don't grasp the Chinese realities properly; on the other hand it is because of the approach of the Chinese theorists'studies. In the fourth chapter, I argue the functions and effects of the"state-society"framework on the basis of the case of the studies on"state law and folk law", reflect the functions and limits of the"state-society"framework in the studies on"state law and folk law", and indicate the problems of the studies on"state law and folk law". On the basis of analyzing why the studies on the folk law become the focus and defining the concepts of the folk law, I discuss the modes of the interactive relations between the state law and the folk law by the examples of"the theory of legal culture"and"the theory of the local resources", and indicate that both of them don't get rid of the governance of the"tradition-modern"idea and the restriction of the"state-society"framework. The reflections on the"state-society"framework by the theorists of the Chinese jurisprudence are still limited to the framework and fall into the logic of the modernity. At the same time, the theorists of the Chinese jurisprudence don't question whether the"state-society"framework applies to the studies on the'state law and folk law"and the effects of the framework. The purpose of the fifth chapter is to provide a probable direction for the studies on the Chinese jurisprudence to get rid of the difficulties and to prospect the development of the Chinese Jurisprudence from the transformation of the thinking mode and the study viewpoint. I think the theorists of the Chinese jurisprudence should adopt the approach of the reflection and achieve the alteration of the viewpoint based on the reflection, that is to say, the theorists of the Chinese jurisprudence need to reflect the"state-society"framework and the studies on the Chinese jurisprudence in the framework deeply, especially need to think over the governance of the ideas of the western modernity to the studies on the Chinese jurisprudence, change from the internal viewpoint of the state to the global viewpoint, construct the new analytical frameworks and the instruments of the concepts, and comprehend the relations of the state and the society and further the studies on the Chinese jurisprudence substantially.The last part is the summary of the paper, in which I give the conclusions and meanings of the reflecting studies in the paper, and provide the important problems worth of further thinking over. The study of this paper is a reflective study for the studies of the Chinese jurisprudence theorists in the"state-society"framework since 1990s, the reflective study can make us recognize the hypotheses, the governing ideas and the limits of the "state-society"framework and the effects of it in the studies of the Chinese jurisprudence, and make us grasp the problems of the studies of the Chinese jurisprudence in the framework deeply. On the basis of this, we can find other analytical frameworks and concept instruments which are more effective and more factual, so that we can more properly in stand and explain the problems of the Chinese jurisprudence.