| As to Chinese Jurisprudence in recent thirty years, various subjects can be found in it. But being summarized according to their purposive orientation, these subjects fall into the discussion about China's legal development. To some extent, the question of legal development has been the central subject of Chinese Jurisprudence in recent thirty years. It significance is not only shown by the fact that a good many juristic theses are directly in the domain of legal development, but also is shown by the fact that the discourse of legal development has even limited or prescribed fundamental domain, way of discussion and point of conclusion in legal discourse.As to the question of China's legal development, there is a pair of relative categories, legal succession and legal transplant. The point of argument in the discussion about legal development is how to cope with the relation between the local knowledge of law and legal transplant. Legal transplant becomes a particular expression focusing on China's legal modernization. However, in recent ten years, the discourses of legal development are usually mixtures of theory of legal transplant and theory of local knowledge. All kinds of multifaceted controversies between theory of legal transplant and theory of local knowledge of law constitute a long-term focus of China's dominant legal theories.In the introduction, after briefly explaining the theoretical significance and practical value of the question of China's legal development is the analytical approach of the dissertation. I point out that by putting this question into a kind of "knowledge and law" framework we can reread its historical and practical significance, thus establish its nature, strength and limitation, connect it with the question of correspondence between Chinese law and Chinese society, stop us from simply regarding law as instrument, and realize that understanding, identity and academic research of law is closely related to our question consciousness of modernity, cultural subjectivity and self-participation in universal subject. In my eyes, as to law's significance in modern politics building significance in the present situation, both legal transplant and local knowledge of law make us enable to review the question of legal development in the following probable perspective, that is, taking the debate about the Sino-Western structure which Chinese legal development has been in and the relation between globalization and localization as the frame of reference, the particular practice of rule of law aims at reinterpreting universality and particularity, which needs to be established and extended in the generation of self-consciousness of cultural subject. Reading the discourse of legal development in this perspective, we can find that without diagnostic reading and inherent recognition about the way by which the universal discourse spreads, the identity and present consensus of law couldn't constitute a coherent narrative with legal development.Through brief introduction of the origin and subject of the dissertation and explanation of theoretical question building and basic reasoning steps, I point out that my theoretical focus is: on the one hand, to present a kind of intellectual attempt to make it possible for the discussion about the question of legal development to be continued further by analyzing and discussing the open-ended theoretical question which is raised through finding the common tendency shared by various doctrines of legal development; on the other hand, to seek to build a open-ended pattern for jurisprudential study, thus to enable our jurisprudence to discuss and to rebuild the universal logic of rule of law through the particular experience of "China's rule of law". All above also constitute one of my intellectual advices for jurisprudential researchers.Chapter I is about the social and theoretical background of legal development research. I point out that the building of the discourse of contemporary legal development research and its practical pattern, no matter its origin, organizing strategy or particular enforcement, in itself is a complex and multifaceted process of argument and discussion. Analyzing at a inductive or general level, we can find in the discourse of legal development two principal subjects, which are two different aspects of the same question: First, can rule of law, which is a pattern of social organizing based on the historical experience of Western society, come into reality in China, that is, "the possibility of China ruled by law"; Second, the debate on questions related to the constructional strength and practical universality of Western discourse of rule of law in today's China. Of course, these two aspects are just an expression of theoretical discourse, the interpretation and analysis of which need us to put it in the context of "today's China".However, for fear of a rigid or close understanding, the legal development in today's China can neither be regarded as a general reaction to "Western shock" and "sample of rule of law" nor be simply traced back to some governmental resource in Chinese tradition. It needs to be understood through given elements of political time and space and historical structure at the level of cultural interpretation. I indicate that, it is of great importance to build the surrounding of language and culture and the surrounding of time and space in which legal development can be reread through our own understanding of rule of law, and thus to express exactly the historical significance and modern mission of legal development. It is under this kind of question consciousness that the author realizes the importance and necessity of the connection between establishment of cultural identity and social consensus and legal development.In Chapter II, I carefully analyze and consider the first classic discourse of legal development in Chinese jurisprudence, the theory of legal transplant. Based on my review and commentary on the theory of legal transplant and the researches and discussions related to it in recent thirty years, I summarize and point out its basic theoretical tendency and standpoint, which thus becomes the argumental support for my following discussion. I consider, although legal transplant is apparently a matter of rule-designing and system-building, as far as the exterior attempt is concerned, the discussion about legal transplant in itself is closely related to the developmentalism-oriented process of modernization happened in modern nation-states. Legal transplant has always been brought with it extra-legal ideal values. The legal transplant in today's China has the tension between the purposive appeal of "China" as a nation state for modernization and globalization as the extensive background and framework. It is such a framework of development that presents the one who embraces legal transplant a somewhat powerful support from an exterior perspective. This support is not merely embodied by the effective demonstration of practical purpose. What is more crucial is that through that demonstration it made the state gain the support of legitimacy in promotion the whole legal system, that is to say, to some extent Western practices of rule of law have supported the methodological integrity of developing rule of law and the historical argument strategy of legitimacy of rule of law.In Chapter III, I analyze and consider the second classic discourse of legal development in Chinese jurisprudence, the theory of local knowledge of law. Sine 1990s, when the development of state ruling by law were decided as one of important parts of socialism modernization, in accompany with the critique of and reflection on the state-directing/government-promoting approach, a few Chinese legal writers leaded by Professor Zhu Su-li began to attempt to speculate and inquire China's legal development in the perspective of local knowledge of law, and hence the argumental pattern of local knowledge of law.Having demonstrated and analyzing the picture of China's legal development discourse around the theory of local knowledge, I believe that, as far as the deep cultural reference implied by law is concerned, the theory of local knowledge becomes a new frame of reference to the theory of legal transplant. In the perspective of the relation of state law and folk law, the theory of local knowledge asks the theory of legal transplant a question, how to take seriously "the function of law in Chinese society". This question has two aspects: first, to make sense of the significance of traditional folk custom and political convention to present world, those elements might have secret influences that should not be neglected; second, how will modern code law gain a footing in unique Chinese legal culture and become law in action. Thus, these two theories together refer to the question of cultural identity of modern law.In Chapter IV, having analyzing above two theories, I begin to consider the question of legal development at a level of integrity. My analysis is based on the following detailed questions: First, in what sense the term "law" in the legal development study is used, how is the "legal" problem in the present Chinese legal development study dealt with , and thinking in the perspective of agreement between law and society, should we only consider it in the perspective of state law or code law?; Second, as the extension of the above questions, since except the function of adjusting people's actions and social relations, law has the political philosophical function of building the modernity of nation state, what is the rationality of the historical approach in the argument of the legitimacy of modern Chinese legal development; Thirdly, developing modern rule of law is a question of legal philosophy relating to ethnic culture and subjectivity of nation state, how do we handle and analyze it, participate in the discussion about it and enter into the theoretical construction and practical expression of popular discourse about Chinese people's living order. I point out that the experiential way of exemplification in the historical argumental strategy is a mechanically instant consideration neglecting the given space and time in which the law exists; which completely conceals or wipes off the necessity to interpret rule of law in the perspective of the political interpretation and cultural significance connoted inherently by legal development itself. The existence of rule of law in past can not prove its legitimacy in the present world.Chapter V is about the relation between Legal Development Research and Knowledge Building of Jurisprudence, which is a further theoretical consideration. I point out that any law can not be understood and interpreted by itself without the given structure of historical culture and the structure of space and time depended by it. Our particular imagination and practical construction of Chinese rule of law is closely related to the historical and cultural structure in which we live and the present social consensus. Based on Chinese legal writers' discussion on this question, I choose Geertz's theory of legal culture as my perspective. I have two reason for doing so: First, Geertz's interpretative anthropology presented a suggestive critique of traditional social theory of functionalism, which gives us a frame of reference to discuss the approach of actual effect and function-oriented rule-of-law construction; Second, Geertz's analysis of law and "local knowledge" not only presented us a particular perspective to understand the so-called universality of rule of law and its locality, but also a suggestion to examine the legitimacy of building a social order, which may help us to give up dualism.In my eyes, to contemporary Chinese development, rule of law is on the one hand an abstract idea or ideal, and on the other hand full of practical conflicts and contradictions. In the obstinate structure of developmentalism, we need a future-oriented way of understanding, which is a concrete unit of reaching agreement and seeking identity in rule of law. It needs us to put the interpretation of rule of law into our cultural ideal and political expectation. On the one hand, it is a concrete expression of historical discourse, more importantly, it may probably surpass given "universal logic" because of its Chinese question consciousness. Obviously, the theoretical building and practical expression of legal development is neither a subject of common sense, nor a pure philosophical question, but a question of today's China reading and defining itself and exploring its own way of development in the multi-faceted structure of development.In the conclusive part, except the summary of discussions above, I reaffirm my theoretical interest and preference. We must give up simple understandings of rule of law, instead we should observe the undergoing great transformation through the association of the generation of discourse of rule of law and the participation of Chinese cultural consciousness. It is under this question consciousness that I emphasize the importance and necessity of the connection of cultural identity, social consensus and legal development in the current reality of developing rule of law. I point out that we should make the study of legal development a jurisprudential problem, instead of a narrative of the discourse of policy science or common sense.This dissertation raises a question that needs every researcher of law to consider carefully, namely, how to conduct a real "China" study. Although I have had some analysis and consideration of the relative questions, my real intention is not to offer directly my suggestion about the pattern of Chinese legal development, but through indicating the common tendency of two existing theoretical patterns of legal development to introduce an approach ignored by past studies for us to have further researches. In my own eyes, on the one hand, the consciousness of "China' question" stressed by such research approach and the relation presupposed by such research approach between the inherent character of knowledge and the theoretical building of jurisprudence present a new possibility for us to extend Chinese legal development research, on another hand, they will help us to answer the question, how will jurisprudence develop itself in raising, considering and answering Chinese question. In this sense, this dissertation is a mission unfinished or impossible, but if it can prove the existence of the question mentioned above it will be more significant than an actual scheme or suggestion hastily given.
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