A Second Thought On Economic Jurisprudence: China's Vicissitudes And Theoretic Outlet

Although economic jurisprudence have developed in China for nearly 40 years,it is still a young discipline and an emerging branch of jurisprudence.In China,the birth and evolution of economic jurisprudence was attributed by China's continuning reform of economic and social system.Tracing back to the history whereof,it is not difficult to find that each and every reforming decision made in such crucial years as 1984,1993,2001 and 2013 derectly influenced,or even decided the awareness,understanding and cognition in the theoretic research of economic jurisprudence,upon which China's economic jurisprudence entered in one after another new stages respectively.Currently,in China's epochal context of comprehensively deepening reform and establishing rule of law system,the development of Chinese economic jurisprudence has entered into its fifth decade,conventionally facing urgent needs from two aspects: first,the need for comprehensive summarization of the relation between established theoretic achievements and their epochal background;second,the need for re-establising developmental goal,key issue and feasiable approach for the new stage,i.e.,the requirement for re-recognition of Chinese economic jurisprudence.So far,Chinese economic jurisprudence,with abundant and overall theoretic development and innovation,is still facing inappropriate external evaluation with its substantial achievements all along.The reason whereof,on one hand,maybe such a stagnation of recognising economic jurisprudence as stucking at the prelimenary,as stucking at the preliminary conclusion reached by 20 years ago,which is inconsistent with the actual situation of the development of Chinese economic jurisprudence that is changing rapidly.On the other hand,the reason may be the lack of explanatory power whereof.The function of its established theories concerning origin,ontology,axiology,methodology,norms and operation is tend to justify its independence.Upon the issue of explanatory power,these theories have to subordinate to such “new theories” as that of distribution,development,information and risk.The latter,which is becoming the theme of theoretic research,is rare at the theoretic level of Chinese economic jurisprudence.Under such circumstance,the issue that,in China,what the future of economic jurisprudence may become,is rather distinct: will economic jurisprudence no longer exist in a few years?Therefore,at this moment when the development of Chinese economic jurisprudence has accumulated experiences and materials for nearly 40 years,this dissertation,attempting to return to basic issue,Chinese economic jurisprudence is lacking theoretical explanatory power as the mainline.Firstly,recalls the vicissitudes of Chinese economic jurisprudence from an overall perspective,recombs the status quo of Chinese economic jurisprudence,which leads to the re-recognization,and for the kontty problem that whether the theories of China's economic law need development or not.Secondly,rethinks that what kind of theories China's economic law needs,why Chinese economic jurisprudence is lacking theoretical explanatory power,it is a way of depth profiling,also seeks the dilemma's way out.Lastly,In the course of overcoming such dilemma and finding solution,methodology is the most basic theoretical repertory,axiology the safeguard of intrinsic logical self-consistence throughout the theory,systematic theory the end of the theoretic research whereof and the beginning point of further study of the theory and system whereof.At this point,the theory of systematic is not only the part of the general plan that overcoming the Chinese economic law's dilemma,but also the starting point and end-result of deeping research on the theories and it's practice of China's economic law.Apart from introduction and conclusion,this dissertation consists of six chapters as follow:The introduction part mainly reveals the process of raising the question at hand.This part first reviews and combs the philosophical basis of “question” and “method of raising question”.The “question” itself entails methodological significance.A question is an organizational centre,for it not only roughly designates the orientation of understanding,scope of exploration and thinking pattern,but also indicates the possibility of new orientation and new trend;the “method of raising question” alone contains the comprehension and understanding whereof,and also presupposes the solution whereof.The final answer whereof may even be the inevitable result of reasoning and deduction following the original method of raising question.The transformation of philosophical method of raising question enables the formation of ontology,epistemology and interpretative theory.The “history of question” of Chinese economic jurisprudence undoubtedly represent its academic history,in which questions like “what is economic jurisprudence ”,“how to understand economic jurisprudence” and “how to interpret economic jurisprudence” throughtout its history,yet this situation also shielded other questions,including a typical question “why the economic jurisprudence emerges and prospers in China”.Moreover,this chapter combs and explains literature review and research method,laying the research foundation hereof.The first chapter examines and explains the cultural phenomenon of Chinese economic jurisprudence.Taking “why economic jurisprudence phenomenon emerges and the research prospers in China”as cardinal line,this dissertation reflectively reviews its development history and characteristics that,at early stage,Chinese economic jurisprudence's vicissitudes is passive and practical,taking reforming economic system as its guidelines and solving practical problem as orientation.With the boost of development,economic jurisprudence's development in China started taking its own way.Such situation ressembled that of former Soviet Union,Japan and Gernan as international exchange was on the edge of discard,which proved by international comparative study of economic jurisprudence research.It signifies that interperting phenomenons of Chinese economic jurisprudence shall be based on Chinese culture and practice,including dominant say in economy,experience in systematic practice,influence by academic convention that tightly connected to Chinese thinking characteristic,ideology and distribution of academic resources.As a whole,Excavating and recombing these materials is significant to reform the understanding economic jurisprudence.Namely,we need to reunderstand and re-position its development in China,as well as the exact relation of economic jurisprudence in countries around the world.The second chapter raises the proposition of “Chinese economic jurisprudence”,and further attampts to expound,prove and re-recognize it.Chinese economic jurisprudence theory,based on historical background and the distinctiveness of its research subject,took its own way that is in consistent with China's actual situation.It,on one hand,demonstrates that economic jurisprudence does not have to be confined to one fixed pattern.Instead,it reflects distinctive endemicity and nationality.The developmen of Chinese economic jurisprudence experienced a transition process from theory referrence to independent development,from traditinal theory to modern paradigm,from instrumentalism to economic rule of law.Therefore,it would be more appropriate and resonable to understand it from a perspective of “ideal type”,for it represents such a new orientation of legal evolution,an intergration of law and economy and that of law and society.It also demostrates theoretic openness and innovation of jurisprudence that is advancing with the times.Certainly,these vicissitudes and breakthroughs should eventually return to the special historical mission of transforming China's economy and society and establishing of rule of law that Chinese economic jurisprudence has to sustain.The third chapter examines the explanatory power of Chinese economic jurisprudence theory.This chapter,in structure hereof,serves as a link between the aforesaid and the following chapters.Explanatory power,as a internal evaluation criteria of Chinese economic jurisprudence,is a meso-issue that should be first reflected after overally re-understanding Chinese economic jurisprudence.Comparatively speaking,the fourth,fifth and sixth chapter hereof is the detailed discussion of theoretical explanatory power.Concerning the issue of the deficiency whereof,existing researches conducted review from such multiple dimensions as including research paradigm,systematicity of achievements and research method.However,issues like where the explanatory power of Chinese economic jurisprudence theory comes from,how to improve such power and what kind of economic jurisprudence theory is what we really need,have not been clarified.Academic community's attitudes hereto are basically unanimous,such as focusing on China's problem,enhancing interation between theory and practice,underlining theoretical systematization and scientization.Yet,the specific measures they offered to improve the theoretical explanatory power are tremendously different.After specifying reasonable position for Chinese economic jurisprudence,such issues as the choice of methodology,value sequence and theoretical systematization whereof are the crucial and basic elements for new development at this new stage.The fourth chapter discusses the choice of methodology in Chinese economic jurisprudence,which the core whereof is to clarify its debate between “jurisprudence as a social science” and “jurisprudence as a dogmatics”.Methodology is the foundation of theoretic research.In the methodological awareness of Chinese economic jurisprudence,“jurisprudence as a social science” has always been considered as an important and even principle research method.However,most of the introspections and proposals whereof are appear to tranditional research methods that would return to and enhance jurisprudence's standpoint,including hermeneutics and dogmatics of law.The fundamental reason is that extensive introduction of social science's methodology incidentally entails its embedded elements,including its basic assumption and value standpoint,which are evidently and internally conflicted with jurisprudence.Therefore,based on such specific reasons as including social science's methodolohical limitations on jurisprudence research and defending legal value's position,returning to “jurisprudence as a dogmatics” is with straightness in it,manifesting a need for cultivating “legal thinking”.The fifth chapter expounds on value sequence of Chinese economic jurisprudence theory,focusing on theoretical reflection on “efficiency value as a priority”.Value issue itself is complicated enough.Methodolohical innovation offered in the last chapter,apart from introducing multidisciplinary knowledges,theories and methods,most intensively reveals the diversity and conflicts of values.Under the comprehensive influence of philosophic thoughts of pragmatism,dominance in utterance of economic policy making,the convenience brought by economic analysis and value classification in every branch of jurisprudence,efficiency value has becoming the dominant and even prioritized value,demostrating itself in the parctices of economic law.Howerer,the establishment of values' priority sequence shall be very prudent.Such an value arrangement as efficiency priors to equality can be effective only in certain specific contexts.Although efficiency value has irreplaceble significance,“efficiency value as a priority” is also expanding in more and more disciplines,yet undoubtly encountered with resistance of recalcitrant forces,among which is social equality,a value position to which Chinese economic jurisprudence as a branch of legal science sticks.The sixth chapter explores the needs and possibilities of theoretic system of Chinese economic jurisprudence.In this dissertation's structure,this chapter is a summerization of previous discussions and a starting point for further study of Chinese economic jurisprudence theory.The quality of theoretic system underlines methodology as foundation,while value is the internal hub for theory to be systemized.Their performance is stringent upon the intensity of theoretic explanatory power,which further has bearing on the social recognition and developing prospect of Chinese economic jurisprudence.Scholars on Chinese economic jurisprudence almost have an obsession with pursuing theoretical systemization,which is a crucial approach of deepening the theory whereof,but also the basic requirement for education and propagation of knowledge of economic jurisprudence.However,Chinese economic jurisprudence system entails such multilayer understanding as including systemization of legislation and knowledge,overall,top level and partial systemization,which all emphasis a theoretical kind of logical self-consistence and coherence.Partial systemization should be a reasonable choice of current Chinese economic jurisprudence,which could theoretically derived from the debate between “Axiom Jurisprudenz” and “Topische Jurisprudenz”,among which emerging “disciplinary jurisprudence” in our academic coummunity is a example.For “disciplinary jurisprudence” to assume the daunting mission of systemizing Chinese economic jurisprudence,it certainly needs to enhance its theoretical consciousness of several aspects,including systemization of concept and that of value.