Study On Civil Disobedience In Chinese Context

On the base of the data on the relation between religion and law through the survey on legal awareness and action of Shanghainess in 2011, proceeding from bipartite structure of self-discipline and others-discipline, religion and law are defined respectively internal rules and external rules. By the analysis of the data, it is found that there is few theists and fewer clear religious believers, even among clear religious believers, few can view religion more efficient than law, even the Protestant Christ is the same. The survey results have conflict with western theory of religion, especially with Civil Disobedience as a primary principle of Christian jurisprudence. The dissertation try to reveal the factor of Civil Disobedience of social practices in Chinese mailand during modern and contemporary times by exploring the Higher Law, thought and practice of Disobedience in ancient China similar to western and the mergence of Chinese and Western culture during modern times, as a basis for interpretation to the conflict, emphasis on Chinese context of legal knowledge and contribution to appreciation of legal knowledge.In literature review, common concern in Civil Disobedience in western old and new world that is East Europe and North America is showed apart from the traditional theory of vision through adding Dostoevsky to Thoreau. The core of Civil Disobedience is boiled down to Natural Law as Higher Law, which core is the viewpoint of individual right with liberalism as the core, rationalist justice with social contract as the core and the supremacy of conscience with revolting agaist tyranny as the core. Ideological source of Civil Disobedience traces back to Hebrew religion much older than ancient Greek in which it is distinguished between literature narrative of Antigone and philosophical speculation of Socrates. Through historical inspection of breeding, germination, theoretical development, practical application, ancient advance and modern renew of Natural Law, the dichonomy of GOD-Man world or law is recognized as the legal philosophical or jurisprudence basis of Civil Disobedience and the viewpoint of individual right with liberalism as the core, rationalist justice with social contract as the core and the supremacy of conscience with revolting agaist tyranny as the core are recognized as justification of Civil Disobedience, with representation of two traditions of theological interpretation and rational demonstration. The modern changing of Civil Disobedience is expressed in two aspects of practicial development and theory transmutation. The research status in Chinese context on Civil Disobedience is summed up as dominatnt view and alternative route. Following the alternative route by Professor Du Gangjian, Dean of law school of Hunan University against dominant view, the dissertation attempts to continue exploring some desirable resources in Chinese context and any possible position in Chinese Rule Discourse System of Civil Disobedience, to make an academic effort for the dialogue of Rule of Law between Chinese mainland, Taiwan, Hongkong and Maccau and the construction of New Chinese Legal Family with combination of ancient and modern China and West.Adopting the method of comparative legal culture, taking western theory and practice of Civil Disobedience as research starting point and referencial standard, the dissertation try to grasp those similar to Civil Disobedience. the dissertation attempts to seek something similar to Civil Disobedience in the classics, works and practices in Chinese history. Though the attempt to seek a function equivalent of absolute western concept in Chinese tradion is surely an academic adventure, the author of the dissertation believes that peoples on the earth faces the same world and some common problems in spite of differences of languages, customs and modes of thinking and there must be something with universal value for dealing with the problem. Chinese thought gene and latent practice counterculture on Civil Disobedience is tried to be searched.At first, by analysizing the related ancient calssics, comparing two pairs of categories of Chinese TIAN/ Western GOD and Chinese Emulating Nature/Western Natural Law, the dissertation generalizes a transformation of worldview from a seperation of GOD-Man to a unity of GOD-Man. Comparing two pairs of categories of GOD's Will/Emperor's Orders and Tao/Law, the dissertation generalizes a transformation of view of law from GOD's Will checking Emperor's Orders to GOD's Law reasoning Human Business. The dissertation assumes that there was a dichonomy of GOD-Man world in ancient China more obscure than in Western and a dichonomy of GOD-Man law in ancient China more incomplete than in Western. However, the mode of Tao growing Law supplies a theoretical category which can graft the idea of Natural Law into China. De and Tao together form the ethical foundation of Chinese politics and law, which supplies a rational core which can graft the idea of Natural Law into China. Therefor, we can say that there were factors for the idea of Higher Law which can form the legal philosophical basis or/and jurisprudence foundation of thinking and practice of Civil Disobedience.Further more, by combing the relation between GOD, People and Emperor and between Emperor, Subject and State, the dissertation generalizes two kinds of ruling ideology of Shepherding People as teleology and Driving People as instrumentalism, regards People Rights containing the thought of People above Monarch and Monarch from People as Chinese expression of Human Rights and abstracts GOD's People of Monarch for People as the viewpoint of Human Rights corresponding to the viewpoint of individual right with liberalism as the core. By comparing such Tao, Zhongyong, Li and Yi as the core concepts of ancient China to western concept of Justice, the dissertation regards Liyi as the premise of Obedience and generalizes modes of Obedience and Disobedience. At the same time, by comparing the concept of contract of Pre-Qin and Hebrew, the dissertation regards the contract of public law after Qin-Han as Chinese practice of Social Contract and abstracts GOD's Law of Li through performing contract as the viewpoint of Justice corresponding to the viewpoint of rationalist justice with social contract as the core. By inspecting the translation of Conscience from English to Chinese, the dissertation abstracts GOD's Reason of Justice to Goodness as the viewpoint of Conscience corresponding to the viewpoint of supremacy of conscience with revolting agaist tyranny as the core. The dissertation regards GOD's People of Monarch for People as the viewpoint of Human Rights, GOD's Law of Li through performing contract as the viewpoint of Justice and GOD's Reason of Justice to Goodness as the viewpoint of Conscience as three justifications of Disobedience in ancient China.Secondly, by analysizing the related ancient calssics, the dissertation sorts out three kinds of behavior of Disobedience in view of GOD's People of Monarch for People, GOD's Law of Li through performing contract and GOD's Reason of Justice to Goodness and two kinds of institution of Disobedience of Trial by Confucian classics and Returning Imperial Edict. In the cases of behavior of Disobedience in view of GOD's People of Monarch for People, such Freedom of Will, Supremacy of People Rights, relative Independence of Military and Juditure and Economic Liberty as Higher Law than Emperor's Orders is discussed. In the cases of behavior of Disobedience in view of GOD's Law of Li through performing contract, such Patriarchal Clan System, Decrees of Past Kings, History, Tao Yi and Li Yi as Higher Law than Emperor's Orders is discussed. In the cases of behavior of Disobedience in view of GOD's Reason of Justice to Goodness, such Conscience as Higher Law than Emperor's Orders is discussed. The gene of Judicial Review involved in institution of Disobedience of Trial by Confucian classics is dicussed. The gene of Administrative Checks and Balances involved in institution of Disobedience of Returning Imperial Edict is dicussed. The dissertation assumes that there was a latent counterculture of Disobedience in ancient China similar to Civil Disobedience.Thirdly, by combing historical inspection of the concept of Citizen of Western scholars and Chinese translation of the concept of Citizen of Chinese scholars, the dissertation accounts the docking of citizen between West and China in terms of Community Membership and seeks intrinsic semantics of Civil Disobedience in Chinese as a desirable universal value. By historical review of the oriental spreading of western culture with Christianity spreading in China, the dissertation combing the path of propagation of the thought and practice of Civil Disobedience in modern China. Taking general constitutive elements of Civil Disobedience as a theoretical framework, the dissertation dissects the case of Subao in Shanghai and the Railway Project Crisis in Sichuan and reveal the factor of Civil Disobedience of social transformation of modern China from two aspects of influence and size.Fourthly, taking general constitutive elements of Civil Disobedience as a theoretical framework, the dissertation dissects two famous events of the Commission of Inquiry on Li Jiulian and the Death Pact of work contracted to households accuring in the Chinese mainland and reveal the factor of Civil Disobedience of social transformation of China in 1970 s in two fields of city and countryside country.At last, with a brief summary of ancient and modern Chinese and Western debate, the dissertation tries to interpret the contradiction between western theory and Chinese reality and draw the conclusion that Civil Disobedience is volation of legal norm in form but is maintenance of legal value in essence. Then the dissertation discusses the idea of Civil Disobedience in legal system and the focus of Civil Disobedience in operation of law of modern Chinese mainland.The achievement of the dissertation is that(1) foundation of the tension between western theory and Chinese reality by SPSS and analysis of ancient thinking gene and latent practice tradition, modern docking and blending between West and China and contemporary performance and value of Civil Disobedience in Chinese context,(2) advancing a more ancient religious source in Hebrew of Civil Disobedience on the basis of its secular reason source in ancient Greece, regarding the dichonomy of GOD-Man world and law as the legal philosophical basis and jurisprudence foundation of Civil Disobedience and regarding the viewpoint of individual right with liberalism as the core, the viewpoint of rationalist justice with social contract as the core and the viewpoint of the supremacy of conscience with revolting agaist tyranny as three layered core elements of progressive of Natural Law and the Higher Law contained in Civil Disobedience and justifications of Civil Disobedience,(3)suggesting thinking gene of Disobeidience with Chinese charicteristics which is GOD's People of Monarch for People as the viewpoint of Human Rights, GOD's Law of Li through performing contract as the viewpoint of Justice and GOD's Reason of Justice to Goodness as the viewpoint of Conscience as core factors of idea of Higher Law, by progressive comparison of western idea and Chinese ancient thought on the basis of another approach by Professor Du Gangjian against the dominant view that Civil Disobedience should not be advocated in comtemporary China,(4) regarding the recorder of kinds of not obeying imperial edict in ancient Chinese history as behavior choices based on GOD's People of Monarch for People, GOD's Law of Li through performing contract and GOD's Reason of Justice to Goodness and institutitional arrangements of Trial by Confucian classics as Judicial Review and Returning Imperial Edict as Administrative Checks and Balances in terms of Higher Law,(5) seeking the common kernel of history of expression of citizen in West and China and historical process of spread of Christianity in China by the method of comparative legal culture and argumentation of value and meaning of Civil Disobedience in the process of the construction of rule of law in contemporary China by refutation of Inapplicability of Civil Disobedience in Contemporary China.