Research On The Notion Of State In The Contemporary Chinese Jurisprudence

With the construction of the country of New China,contemporary Chinese jurisprudence has also gone through 70 years of development.In this arduous process of academic exploration,contemporary Chinese jurisprudence has achieved many remarkable achievements,especially the gradual construction of the theory of socialist rule of law with Chinese characteristics.As socialism with Chinese characteristics enters a new era,the cause of China's state-building has been more comprehensively and deeply promoted,which provides an excellent academic opportunity for the further development of contemporary Chinese jurisprudence.Therefore,contemporary Chinese jurisprudence needs to reflect on and summarize its own shortcomings,and strive to find new theoretical breakthroughs and growth points.In this way,we need to start from the notion of state.on the one hand,we can reflect on the relationship between the state and the law in the contemporary Chinese jurisprudence by combing,analyzing and judging the notion of state held by Chinese jurisprudence at different stages;on the other hand,on the basis of summarizing the deficiencies of research on the notion of state of contemporary Chinese jurisprudence,this article puts forward the theoretical conception of constructing the “ legal theory of state”.In order to clearly depict the content and changes of the contemporary Chinese jurisprudence,it is necessary to establish three ideal types,namely the“strong”legal theory of state,the “ weak ” legal theory of state and the legal theory of“state-centered”.These three ideal types are the generalization or modeling of the three historical stages of Chinese jurisprudence: These three ideals are generalizations or models of the three historical stages of Chinese jurisprudence: From the 1950 s to the 1980 s,the “strong” legal theory of State,i.e.the typical “theory of state and law”,prevail among the theories of jurisprudence in this period.The second phase from the late 1980 s to the turn of the century(till around the year of 2005),as a result of this phase jurisprudence has secured its legitimacy status,become an independent discipline of law,and all kinds of legal theories emerge in an endless stream.Several representative theories are collectively referred to as the "weak" legal theory of State.The article mainly focuses on the "rights-based" theory represented by Professor Zhang Wenxian,the civil rights philosophy theory represented by Professor Xia Yong,and the "the modernization of legal system" theory represented by Professor Gong Pixiang,the theory of local resources of the rule of law represented by Professor Su Li and the legal culture represented by Professor Liang Zhi Ping.Since the third stage which is from 2005 until now,even if there are some legal theories have not gained much influence in,and attracted attentions and discussions of the academic circle.There is a common feature among such theories is that they actively put state concept in the theory of the core position,explore the relationship between state and law of the basic principles and laws,therefore I called the legal theory of “state-centered or “legal theory of state” for short.The typical examples of this theory are the “jurisprudence of legislators” represented by Professor Jiang Shi Gong,the “political constitutional jurisprudence” represented by Professor Gao Quan Xi,and the “constitutional theory of great powers” represented by Professor Su Li.“Theory of state and law” is the “strong” legal theory of state,because in the relation between state and law,state took general position on the value level,law is largely reduced to serve political purposes of the state,means and tools of theory became a byproduct of state theory.In other words,in the “theory of state and law”,state(theory)is more powerful than law(theory),and state and law are in a state of imbalance in theory.And the “weakness” of the so-called “weak” legal theory of state is defined state and law definition of the relationship,however this “weak”shows more complex features.First of all,the “weakness” of the notion of state is a relative weakness,compared to the absolute strength of the “strong” notion of state.Second,the “weakness” of the notion of state also implies the decline of the theory of state that include the perspectives,narratives,interests,spirits,and values of state.Thirdly,the“weakness”of the notion of state also indicates that the theme of state is no longer the central theme of jurisprudence.In other words,the focus of jurisprudence on the theme of state is only a side effect of the study of legal theory itself.Finally,the “weakness” of the notion of state is also reflected in the fact that a systematic framework of theory of state related to legal theory has not yet been constructed.It is based on these four characteristics that the state(notion)is in a weak position compared to the law(notion)in this legal theory model.The legal theory of“ state-centered ” refers to the legal theoretical paradigm that takes the state as research perspective.This legal ideal type re-examines the research objects,research methods,research approaches,research interests,etc.of law from the perspective of the state,reintegrating the state into the discussion of the basic theory of law,and the relationship between the state and the law constitutes this the basic research category of legal theory.From “strong” legal theory of state to the “weak” legal theory of state to the legal theory of “state-centered”,the notion of state has experienced a dialectical process from the negation to the affirmation and to the negation of negation in contemporary Chinese jurisprudence.Although Chinese jurisprudence is beginning to gradually realize the important value of state for the legal theory,in general,the relationship between state and law as the basic research category of jurisprudence is not strong enough,and it has not yet been constructed the theoretical models,analytical frameworks and methodologies to explain the significant rule of law practice in contemporary China.Therefore,on the basis of rethinking and summarizing the research of the notion of state of contemporary Chinese jurisprudence,this paper proposes to move toward the “legal theory of state”.The “legal theory of state" can be expounded in three aspects from the three aspects of the context of the times,the research object and the theme.First of all,the context of the “ legal theory of state ” is a new era of socialism with Chinese characteristics.The “new era” has four connotations,that is,new changes in major social contradictions,new goals of the Chinese nation,new roles in the international order,and this new era is still a new era of socialism with Chinese characteristics.This is the invariance of the basic attributes of the new era.The significance of the new era to the study of legal theory lies in the fact that it provides a rich theoretical proposition for contemporary Chinese jurisprudence.The “legal theory of state” is actually an in-depth study of specific theoretical issues under these large subject areas.It can be said that the new era provides a rare opportunity for contemporary Chinese jurisprudence to move toward the “legal theory of state”,i.e.the opportunity of interdisciplinary research,the macroscopic paradigm of law,and the national spirit.This opportunity is also the foothold for deepening research of the “legal theory of state” in the future.Secondly,since the research object of jurisprudence is legal principle,as a kind of jurisprudence,the “legal theory of state” is of course also based on legal principle,however,this legal principle is the legal principle of modern state construction,that is,the legal laws,principles,methods and values of the modern state in the process of establishing the state by law and the rule of law.It is precisely because of the uniqueness of the research object that the“ legal theory of state” in the study of the state as a central perspective,to observe the law from the state perspective,but its foothold is to discover,observe,analyze and refine the legal principle.Finally,the study of the legal principle of modern state construction by the“legal theory of state” is not unintentionally unfolded,but to discover,observe,analyze,and refine the legal principle under a more specific research theme.Therefore,it is necessary to re-analyze the theme of the “legal theory of state”.The“legal theory of state”contains three major themes: the reason of state,the reason of law and the reason of political parties.Of course,the“ legal theory of state”does not study these three themes in isolation,but focuses on the interaction between the reason of state,the reason of law and the reason of party.This group of interactive relationships constitutes the legal framework of China's state construction in the new era,that is,the formation of a constitutional reason of party-state with Chinese characteristics.