The Reasonableness Of Legislation

This paper explain the reasonableness of legislation from a legal-theoretical point of view,and gives an overview on current research as a new approach to lawmaking.It is suggest that a systematic analysis should be made according to the needs of the situation and the relationship between the situation and law.Then,to achieve the purpose of scientific legislation.The thinking of legislative theory is undoubtedly a common concern of jurisprudence and political science.In a sense,legislative spirit may be traced back long ago in the history of legal and political thinking,the Age of Enlightenment.That period was not only the productive period of law and political thinking,but also the period of opening the door of reason and wisdom for the development of law.If legislative theory is claimed to be a new approach,it is because that spirit has only recently been reshaped and updated in order to recover a dedicated space to study legislation within the field of legal philosophy and legal theory.The 18 th Congress of the Communist Party of China clearly put forward the objectives and requirements of “scientific legislation”,a large number of academic researches try to prove the reasonableness of legislation from the field of philosophy of law,this shows that the importance the reasonableness of legislation has been increasing.Yet it must nowadays deal with a very different context: sociopolitical and institutional circumstances of lawmaking are perhaps more intricate than ever.This is precisely one of the major challenges that legislation faces.How to construct a comprehensive theory of lawmaking,while preserving a core of classic tenets of rational legislation,that is capable of adapting to the development of socialism with Chinese characteristics in the new era.Finally,the true meaning of rule of law,and for a promising future to develop new legislative standards,building a beautiful visiting card of rule of law in China---the integration of rule of law in China,government by law,law-ruled society.In view of this,focusing on the elusive concept of the reasonableness of legislation,rethink the reasonableness of legislation according to the philosophy of law.In legislative activities,the concept of reasonableness in legislation is always intertwined with the concept of justification.According to logic,only when legislation is legitimacy can it be regarded as reasonable.Therefore,the legislation is in line with the needs of social reality and the interests of the people,we can think that legislation is reasonable.Follow this thinking,explain the reasonableness of legislation in detail.In the practice of legislation,legislators usually make laws in their own way of thinking,which can reflect what the law is in the legislator's vision and how the law is applied.On this basis,this paper attempts to question the inherent thinking paradigm,which shows that legislators pay less attention to legislation from a theoretical point of view.Then,it uses Cartesian model to prove the reasonableness of legislation,and on the basis of this model,it shows that if the legislators can accurately understand the social reality,the legislators have been expected to create optimal norms.However,the optimal legislation may be dangerous fiction,after all,facts have proved that social reality is not easy to be described by legal norms,and in many cases the laws made by legislators can not satisfy the public.Therefore,we should use a more appropriate method to replace the perfectionism of the reasonableness of legislation.Drawing on the notion of “bounded rationality”,which provide a more realistic account of the reasonableness of legislation.The concept of“bounded rationality” was put forward by H.Simon,the Nobel Prize winner in economics in the 1950s——“binding theory” considering the restriction of decision maker's information processing ability”——that is,the decision maker's limited time,incomplete information,and limited cognitive ability.So legislative decision maker can only make relatively reasonable laws,instead of optimal ones.Bounded rationality,it is argued,also applies to legislation: legislator act upon social reality to which they have only a limited access.Furthermore,as decision makers,they are bounded by limited rationality like economic decision makers are.This results in relatively legislation,the process of which should be made as rational as possible without supposing however that it will be optimal.On this approach,reasonableness of the legislator is no longer an irrefutable quality,but needs to be empirical evaluation.The reasonableness of legislation can not be examined from single cognition model,it is mostly from the “consensus” level.Legislative consensus is to form a common understanding of legislation after many discussions.This kind of legislative consensus is not blind,it depends on the social reality.In the process of legislation,legislators gradually reveal the social reality through consultation and argumentation then reach an objective and independent consensus.The reasonableness of legislation itself has multiple dimensions.It is necessary to make different dimensions suit each other,there is some basic consensus---charity interpretation,democratic conditions,rule of law requirements,and procedure principle.They provide rationality for legislation,which is the consensus formed in the long-term legislative practice and the basic resource of the reasonableness of legislation.This basic resource not only emphasizes that the reasonableness of legislation should conform to the social reality,but also prevents the legislator's own randomness.On the one hand,these basic consensus make the reasonableness of legislation more clear and definite.On the other hand,it influences and guides legislators' legislative practice in powerful way,ensure consensus on legislation,endow the reasonableness of legislation with permanent power.The understanding of legislative reasonableness has a time dimension.Therefore,legislators can only know the general trend of social reality,it is difficult to predict the uncertain factors in the process of social development.In terms of the legislative process itself,the legislative behavior of legislators should be carried out in inherently uncertain and complex situation.That is to say,rational legislators should always pay attention to their own laws,and it is necessary to demonstrate the reasonableness of legislation from a diachronic perspective,also demonstrate the reasonableness of legislation from a synchronic perspective,then through the social effect of law,look upon the reasonableness of legislation.There is no doubt that the core discourse of legislative reasonableness is argumentation.An effective demonstration of the reasonableness of legislation can prove that the law produced by legislation is a good law.Because the legislation of the modern law country needs a proper reason,which is not simply put forward,but demonstrated.In short,The reasonableness of legislation depends on the legislative demonstration,which should run through the whole legislative process.Legislative reasonableness includes not only reasonable logical structure,but also reasonable cognitive process,and the most important thing is to meet the inherent requirements of constitution.The formation and competition of the international market are becoming more and more complicated,which makes the regulatory governance become the mainstream trend.So in the context of current regulatory governance,how does legislation comply with the requirements of constitution is an unavoidable problem.Under the market economy system,the reasonableness of legislation is largely guided by the principle of “efficiency”,and the requirements to the rule of law also tend to market economy.As the guarantee of market economy,the rule of law promotes the efficiency of law creation.In other words,the rule of law and market economy have become unavoidable factors in the reasonableness of legislation.In fact,Regulatory governance must meet the requirement of the Constitution.If the regulatory governance does not conform with the Constitution,it will not only damage the legal system nature of regulatory governance,but also more importantly,it will negate the legitimacy of regulatory governance.Therefore,the process of legal creation must conform to the workable constitution and the actual behavior of legislators must also conform to the norms of the workable constitution,so as to play a normative role.There are two conditions for workable constitution: one hand,the workable constitution should be the result of the successful of coordination of the interests of various social subjects;the other hand,the workable constitution must be able to guide legislators to make reasonable decision,then promote the formation of rule of law in China,government by law,law-ruled society.only in this way,constitution can become a key part of social structure.Therefore,as the inherent requirement of legislative reasonableness,constitution plays a decisive role in the contemporary legal and political theory.The social effect of legislative reasonableness is closely related to the degree of social communication.In other words,in order to realize the reasonableness of legislation,legislators must fully and effectively communicate with the social reality.Because social reality is the whole manifestation of all aspects of society.Though science is a necessary tool for the reasonableness of legislation,it is not enough to prove the reasonableness of legislation.On the contrary,the reasonableness of legislation is composed of the specific qualitative factors,which can not be calculated by mathematics.All in all,although legislative rationality is sometimes elusive,the basis and limits of legislative rationality can be determined.It may be said that the key to the rationality of legislation lies in the performance of legislators,that is,whether the legislator views the rationality of legislation from the perspective of constitutional system,rooted in Chinese culture,learn from the beneficial achievements of human civilization of rule of law.In addition,legislative rationality can not be separated from legislative demonstration,a good legislative demonstration model can promote the formation of legislative rationality.The rationality of legislation goes far beyond the formal and procedural themes of legislation,scholars who study the reasonableness of legislation tend to ignore this point.Therefore,the research on the reasonableness of legislation will inevitably produce a reflection on legislative theory,so as to introduce a new perspective for legislative research.