The Stability And The Change Of The Law

Law must be stable and also must be changeable, so all the legal theories are trying to coordinate the stability and the change of the law. At the same time, in the period of China's social transformation the development of law is always a hot issue of legal theories. In the period of China's social transformation, the stability and the change of the law are coordinated synchronally, which is different from the western societies. In western societies the stability and the change of the law are coordinated chronologically. Now it's just because of the unawareness of the particularity and the difference in the research of the legal theories that there are so many problems and plight in the coordination of the stability and the change of the law. The plight and the problems lead to the result that the law hasn't play the due social functions yet.Based on the analysis on the case of Constitution of the People's Republic of China, this thesis introspects the problems in the coordination of the stability and the change of the law in the period of China's social transformation. Considering the particularity of social and law in the period of China's social transformation, the thesis analyzes the reasons of the plight and the problems, refers to the western legal theories which coordinate the stability and the change of the law and proposes the demands of the coordination of the stability and the change of the law in the period of China's social transformation in order to solve the plight and the problems and also to make the stability and the change of the law to advance China's social transformation effectively. 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 mainly clarify the purport that why I choose the stability and the change of the law in the period of China's social transformation as my research, define the questions to be discussed and explain why sociology of law as an independent research method is beneficial to my research, so as to study and introspect the stability and the change of the law in the period of China's social transformation with a positivism approach by the perspectives of the combination of chronology and synchronicity, case and macro-analysis.The second part includes five chapters. In the first chapter I explain the general theory of social transformation and law. Firstly, I analyze the connection and interactive of the social change and the law on the legal reflection on the social change, the legal advance to the social change and the mutual evolutions of the social change and the law. Then I systematically discuss the theories of the social transformation in the social change, especially on the western theories of the social transformation. In order to reveal the particularity and the difference of the social transformation between the western societies and China, I evaluate and introspect the western theories of social transformation. In the second chapter I generally explain the stability and the change of the law, analyze the necessity of the stability and the change of the law and the causes of the change of the law. On the basis of clarifying the concept of the stability of the law, I think that the stability of the law is the demand of the legal authority, the psychological needs of the stability of the law are the general safety expectations, the social needs of the stability of the law are the configuration and the security to the social order and the stability of the law is also the demand of the idea of"rule of law". The causes of the change of the law can be summarized as the change of the regulation targets--social relations, the change of the law under the structure of the world, the vitality of the law, the adaptability of the law and the change of the legal ideas.The third chapter, the fourth chapter and the fifth chapter are the core of this paper. The third chapter chooses the case of Constitution of the People's Republic of China as the research object and analyzes the stability and the change of Constitution in the period of China's social transformation. Based on the analysis on the case of the Constitution, I summarize the problems and the particularity in the coordination of the stability and the change of the Constitution. The problems and the particularity mainly include: Firstly, the demands of the Constitution's change hide the demands of the stability of the Constitution. When the scholars talk about the constitutional order and the constitutional model based on the study of the western constitutional order and when the legislators revise the Constitution and other related regulations, the demands of the stability of the Constitution are neglected by the legislators and the scholars gradually. Secondly, the awareness of the Constitution's function affects the coordination of the stability and the change of the Constitution, that is to say, when the Constitution is seemed as a tool of the legalization of the state power to some extent, its social change's function is weakened. The Constitution can't be seemed as the tool of the legalization of the state power. Conversely, the core of the Constitution is to guarantee that the state power can not be abused when it promotes the social progress and the social development. The functions of the Constitution are not only the registration and the consolidation of the ruling class's power but also the promotion of the social changes and the social development. Thirdly, policy is the primary factor of the coordination of the stability and the change of the Constitution. The Constitution of the policy leads to the deviation of the objective of the Constitution's revisions-- in some extent the objective of the Constitution's revisions is to adapt the economic policy, political policy and the cultural policy, but not to realize the demands of the social development and perfect the democracy and the constitutional order. At last, the misunderstanding of the Constitution's quality is also the cause that leads to the imbalance between the stability and the change of the Constitution. In the period of China's social transformation, the Constitution's quality is treated as the confirmation of the economic reform and the economic order. The quality of human rights concern and the supervision on the sovereignty is forgotten.The fourth chapter is the totality introspections of the stability and the change of the law in the period of China's social transformation based on the study of the Constitution. Firstly, the demands of the stability of the law are neglected, which leads the imbalance between the stability and the change of the law. Secondly, in the period of China's social transformation the functions of the law are seemed as the confirmation of the economic reform and social transformation, as the legal certainty of various policies and as the tool of the economic development and social advance. These ideas make the misunderstandings of the functions of the law. Moreover because of the concern of the confirmation and the security of the social transformation, the function of the law to promote the social transformation in the period of China's social transformation is weakened. At last, because of the lack of the legal purpose, the change of the law is only to seek the forms and forgets the particularity of China's social transformation. The positivism analysis on the stability and the change of the law in the period of China's social transformation tells us that the change of the law is separated from the purpose of the law, that is to say, the change of the law is lack of the purpose of the law and the purpose of the law is disappeared under the transformation of the state policy and the social transformation. The legislators and the scholars are not interested in the purpose of the law and the connection between the purpose of the law and the regulations is separated artificially. The change of the law is more concerned on the quantity and the scope of the change than on the purpose of the law. The purpose of the law is immersed in the development that the legal concept and the legal logic are unanimous.On summarizing the inspiration of the western legal theories about the coordination of the stability and the change of the law, the fifth chapter explains the demands of the stability and the change of the law in the period of China's social transformation. I think, in order to make the law to play the due social functions and to promote the social transformation effectively, the study on the coordination of the stability and the change of the law must base on the particularity of China's social transformation. It mainly includes: Firstly, law in western societies has reached maturity in a sense. In western societies the demand of the stability of the law has overtaken the demand of the change of the law. To western societies the stability of the law is vital; the vitality and adaptability of the law is secondary. On the contrary, the social changes in China are so dramatic that the situations are different from the western societies distinctly. In China the law is in the growth period and the elements of the legal precepts, legal technology and the legal ideals are developed constantly. We can say that in the period of China's social transformation the demand of the change of the law overtakes the demand of the stability of the law. If we can't realize this particularity, we can not answer the question that how the law can play its functions and we will eliminate the particularity of china in the stability and the change of the law in western societies. Secondly, more concern should on the change of the law in the period of China's social transformation unavoidably. The coordination of the stability and the change of the law must stress on the necessity of the change of the law primarily. In the period of China's social transformation the law lack of the purpose changes without directions. That the Law should have more power of change and adaptability requires the direction or the principle of the legal change. Without the direction and the principle, the change of the law will lead to the arbitrary and randomness, which is depart from the social development and demands. I think the direction or the principle is the purpose of the law. The question what is the purpose of the law in the period of China's social transformation should base on the particularity and the social demands of the social transformation. Thirdly, we should reconsiderate the functions of the law. The trend of Law Instrumentalism in China is different from the western societies. In the period of China's social transformation the trend of Law Instrumentalism is beneficial to the social transformation. The key problem is who is the user of the tool. If law is the tool of the policy, the tool can only have the arbitrary and can not foster the legal authority, can not provide the general safety expectations and can not configure the social order. The trend of Law Instrumentalism is against the demands of the social realities, that is to say, law is the tool of implementation of the demands of the social realities. Then revolution and reform are both the adjustments and the rescheduling of the interests. In the period of China's social transformation, the pattern of the interests has been adjusted constantly. With the guidance of the purpose of the law, the law chooses the interests to define, secure and balance in order to solve the conflict and the imbalance of the interests. At last, as an effective social control method, law can guide and configure the social order. But this function hasn't been played and concerned yet, this function is weakened relatively. The law is mainly the confirmation and the safeguard of the existing social order and only has the limited function on the guidance of the social development. The fundamental cause of this plight is due to the lack of the purpose of the law during the coordination of the stability and the change of the law in the period of China's social transformation which leads to the change and the development of the law without directions. Fourthly, the world structure is one of the features in the period of China's social transformation. As a local knowledge, law requests us to have the perspective of the culture in the country that is transplanted to the other country's law and to close the situations there. Our imagination of the law fundamentally constrains the legal transplant, the purpose of the law and the understandings of the stability and the change of the law.The last part is the summary of the paper, in which I aggregate and summarize the path of the research and the basic conclusions in order to clarify the intents and the viewpoints of the research.