| Chinese don't distinguish "legislation" and "law" much in their daily language. But the intention and extension of these two words differs considerably in the context of legal history, legal philosophy and jurisprudence. During the process of translating western legal works, many Chinese scholars found two groups of related words: law (English), Recht (German), Droit (French), Diritto (Italian), jus (Latin); legislation (English), Gesetz (German), loi (French), logge (Italian), lex (Latin). But Chinese doesn't have suitable equivalents to these two words, so the translators created "法律(law) "and "制定法(legislation) ", indicating these two groups of words with "法"and "法律" or "法律" and " 制定法". However, they're not sure about the distinctions between them.This thesis is arranged in five sections:Section one expounds on the historical development of the concepts of legislation and law. The author intends to clarify the differences between the two words, for the particular connotation of each word has experienced a long period of elution, familiarity with which is the prerequisite to understand the specific words. Reviewing the development of "law" and "legislation", the author endeavors to explain the two terms with materials from legal history.The relationship of legislation and law has been a baffling problem in western jurisprudence for two thousand years all along. All the legal doctrines belong to two major batches according to their attitude toward legislation and law: one group is represented by legal positivism, the other include natural law, historical jurisprudence and sociological jurisprudence, etc. The former maintains that legislation equals to law and authority is the basis of law, while the latter believe that law is different from legislation. These two groups disagree with each other on the effect and basis of legislation. This thesis regards those elements emphasized by various doctrines as a indispensable party of legislation and name the reasonableness of legislation as "the legitimacy of legislation". After discussing a couple of doctrines, the author concludes that a reasonable legislation shall possess attributes as authority, society and values. This is section two.Section three put the differing law and legislation on the background of jurisprudence, where their relationship takes the form of legislation and sources oflaw. The author believes that other sources of law, such as custom, precedents and legal principles, have been complementing and perfecting legislation which still dominates the legal systems of continental countries.Section four discusses Chinese traditional ideas about social rules. It's discovered that legislation doesn't occupy a superior position in Chinese traditional ideas, so it isn't the highest authority and the only rules and it have to be in harmony with higher laws. Therefore, Chinese traditional idea of law is a combination of natural law, legislation and discretion which is embodied in both legislative and judicial activities. Traditional ideas still influence the public's view on authority and rules so as to be worthy of attention.Section five discusses china's developments toward rule of caw when legislation and law are in a tense relationship and concludes the whole article. It must be pointed out that rule of law shall not be understood in on extremely formalism sense and it's not a simple counterpart of rule of man. If it's prefer to classify political activities under rule of law into law-making and law-finding then legislation in the law-making period needs legitimacy and needs complements in the law-find period. The author generalizes his suggestions as: complete democracy with professional assistance in law-making and legality and discretion in law-finding.It's said that the composition of an article shall be put in one word. To apply this standard to this article, it's appropriate to say that legislation is difrerent from law whenever and wherever you go. This conclusion is not based on fantasy but based on observat... |
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