Redefining Law in China

Multimodal construction of ‘rule of law’ in Chinese anti-corruption public service advertisements

Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal. Oxford: Blackwell Publishing, 2008, 283 pp. The conquest of the earth, which mostly means the taking it away from those who have a different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretense but an idea; and an unselfish belief in the idea-something you can set up, and bow down before, and offer a sacrifice to.... -Joseph Conrad, Heart of Darkness I begin this review of Plunder: When the Rule of Law is Illegal, by the Italian comparative legal scholar Ugo Mattei and the American anthropologist Laura Nader, with this pungently ironic excerpt from Conrad, for two reasons. First, this is the way in which the late-great Edward Said chose to end the last section of his masterwork Orientalism and Plunder is dedicated revealingly to the memory of Said. But more importantly, both the style and importance of Plunder are derived from the same form of intellectual and ethical engagement, in which clear-eyed history, polemic, and radically purposive reframing are brought together in order to very much look into it, to shine a piercing light onto the idea at the back of it, to ask the question whether the unselfish belief in an idea of transcendent importance does not, in fact, serve other, far less, sympathetic interests. The idea here is the idea that something called the rule of is universal, essential to the development of progressive legal, political, and economic institutions, and the natural bedrock of the contemporary transnational humanitarian impulse. The belief is the belief that the rule of will-even if forcibly introduced at the point of a gun-provide a structural cure for all ills as a kind of normatively neutral animating principle that symbolizes the presence of values that are both irreducible and unassailable. Mattei and Nader subject both this idea and belief to a withering and interdisciplinary critique that will be of considerable interest to anthropologists and others who find themselves knee-deep at the ground level of contemporary normative practice, where the rule of law continues to exist as one of the few remaining shibboleths to have resisted the complete Saidian treatment (others include dignity and justice). After Plunder, the rule of law should no longer be understood in quite the same way again. Even if the overly doctrinaire political economic framework within which Mattei and Nader explain the relationship between rule of law ideologies and crude economic imperialism does not, in my opinion, completely capture the ways in which the belief in the rule of law-and legality more generally-masks different forms of will to power, the authors' archaeology of the contemporary moment leaves no doubt that the internationalization of law has been, and will continue to be, imperial in ways that demand close and unsentimental scrutiny. Plunder is both a sustained and coherent argument and an intensely factual book. Nearly every assertion about the relationship between legal ideology and practice, and economic exploitation and enforced dependency is illustrated with reference to a case study drawn from both earlier and much more recent history, from the machinations of the East India Company at the beginning of the 18th century to the multilayered economic crisis in Argentina in the early 2000s. Despite its wide range and inherent importance, only so much of Plunder will be of academic interest to anthropologists, even if anyone concerned with contemporary global assemblages should take the time necessary to understand the ramifications of the authors' thesis in light of the case studies drawn from political science, current affairs, economics, international relations, and, above all, international law. Plunder arrives at a historical moment in which the ideological pretensions of the great powers-or, perhaps, great power-are no longer treated with deference, respect, or even the kind of forced and artificial credulity that weaker nations were inclined to adopt as part of a wider realist strategy of instrumentalist accommodation (at least by elites). …

The language of comparative law is replete with terms referring to ways in which legal norms and ideologies move. While an overview of these is not appropriate in this article, I will take up one recent suggestion that I find particularly illuminating. Maximo Langer has proposed the term »legal translation«, through which he hopes to highlight the fact that legal norms rarely remain unchanged when they are taken over by another legal system. Legal norms need to be adjusted to their new legal, social, political, economic and cultural environments. The »translator« of the norm, legal institution or legal ideology does, in fact, much of the same work as a translator (or a reader) of a novel or a poem. When works of literature are read or translated by a person belonging to another cultural sphere, the original texts assume different meanings – although their essential meanings will often remain the same. »Legal practices and institutions may be transformed«, Langer emphasizes, »when translated between legal systems either because of the decisions of the reformers (translators) or structural differences between the original and receiving legal systems (languages).« This article is about »translating« a particular legal ideology from German into Finnish law. As practically everywhere in the West, Germany was the primary source of legal reception in late nineteenth-century Finland. In this text I look at a group of »legal translators« who imported a package of German legal ideas into the Finnish legal landscape. The package of ideas that I address is called »administrative law« (German: Verwaltungsrecht; Swedish: forvaltningsratt; Finnish: hallinto-oikeus). I show that the »heroes« of this story – Robert Hermanson (1846–1928), Leo Mechelin (1839–1914) and K. J. Stahlberg (1865–1952), all politicians and professors of law – did was not merely import foreign ideas into their own country, they also carefully mapped these ideas onto a different political environment. 267

The question of relation between the treaty and custom does not present a topic worth particular scientific attention there where the two institutions are not being confused. This does not only occur in Czechoslovak Doctrine of international law, but the reasons for such confusion imprint – in juristic works interpretation – on the functionality of the two institutions a content that is no longer in harmony with the development stage of the contemporary general international law and above all with its peremptory rules. The qualification of international custom as tacit treaty hitherto upheld in Czechoslovak writings of international jurists – is in respect of development essentially in accord with the international law prior to the Great October Socialist Revolution and the actual exposition of the relation between treaty and custom corresponds rather to the period when the coming Soviet power was confronted (also from the power aspect) with the imperialist international legal superstructure. This old conception is, therefore, incapable to express the nowadays indisputable normative reflection of the presence of the socialist social system within the class structure of the international community of states, in the content of its legal order – in the contemporary general international law. The question of the grounds of the origin and binding character of the customary law too little pursued by our juristic works is one of the main reasons for scientifically unfounded favouring of the international treaty to the detriment of international custom – of its functional importance in present day international law. This is in particular evident in the definition of peremptority of profiling rules of the contemporary general international law, their origin and reason for their binding character can not possibly be grasped by treaty form at all. Inapplicable, therefore, are also positivistic interpretations of the origin and binding character of customary law – the interpretation both by fiction of tacit treaty and by means of the so called “recognition” theory – at their time intentionally restricting attention to form which was to be complied with by rule makers, though from such mere form the content of unwritten law can not be known: or just in order to provide room to the positivistic doctrine for speculative deductions about the law as it should be. If it is impossible to elucidate the binding character of treaty rules without taking acount of material sources only sometimes (clausula rebus sic stantibus), then it is necessary to take acount of social and political circumstances – i. e. of material sources – attendant upon the origin of a rule of law and in abstractness expressed in the hypothesis of such rule, in the customary law always. This is indirectly but convincingly corroborated by the most refined of schools of legal formalism – the normativist school – declaring, namely, as a point of its programme material sources an unfit subject of interest of the international law theory, yet in the end the Very same school came to confess its inability to elucidate the origin and reasons for the binding character of international custom just by means of the formal sources of the law. The theoretical foundation for the exposition of the grounds of origin and binding character of international customary law – making use of the material sources of the law – was laid by the Anglo-Saxon law school and so by the school working currently with the instrument of custom even in the domestic field. Decisive for the school is not an a-priori form hypothetically set down by the international law, with which – according to the requirement of the doctrine – practice must comply to enable a customary rule to come into existence, but the very practice of the states is law constituting if it is also general (usus generalis) and if accompanied by awareness of necessity (opinio necessitatis), i. e. by the realisation of unfortunate consequences in the event of different procedure. The Anglo-Saxon interpretation of the grounds of the origin and binding character of the international customary law was adopted by authors of Soviet Doctrine of international law by stating (G. I. Tunkin) that for individual countries it is necessary to regard as binding rules that are recognised by the absolute majority of countries and governed by them, if among them are states of both systems, big powers included. Here the parallel appearing endeavour to bridge the existing dissension in the interpretation of the origin and binding character of international customary law led, however, in the end (most significantly in the instance of G. I. Tunkin) to emphasizing consensus and thereby – conformably to the positivistic school – to the qualification of the international customary law as unwritten treaty; from there is but a little step to absolute favouring of the written treaty against custom, if custom be so described as unwritten treaty. In the Czechoslovak juristic works the treaty is favoured too not only because it is accompanied by an explicit expression of will compared to the hypothetical tacit and moreover presumed expression of will in the instance of custom (whereby treaty character is assigned to custom), but also because written law is attributed a higher value as compared to unwritten law and written treaty rules owing to their precision are designated as more reliable for legal regulation among states, in particular of different systems. The misconception of the value approach is proved by the relation between the customary (i. e. unwritten) general international law as treated in this country on the one hand and its codification on the other which relation is considered to be determined by the principle lex posterior derogat priori. Actually codification does not override any prior generally valid custom regulation, since universality in the acceptance of a codification treaty is as a matter of principle not required for coming in force in the instance of codification. In particular it is impossible Ito split jus cogens by such codification treaty in two particular regulations – one acting among the treaty signatories, the other for the remaining relations, since thereby would be abolished the jus cogens itself which in general international law is invalid ab initio – as also worded in Art. 53 of the Vienna Convention on the Law of Treaties (1969). The purport of codification is, therefore, merely to provide the general international customary law with a binding interpretation otherwise taken care of in the first place by the doctrine. Regarding the rules with which a codification treaty contributes to international law developments, these are of particular validity so long until rendered generally valid by law-creating custom, to which quality the codification treaty could have given just the stabilising impuls, but not the very binding character of legal validity: the same result could be brought about by a universal adoption of the codification treaty which is practically unrealistic. It is therefore wrong to see in the codification primarily a formulation of new rules in written form as currently handed down in the Czechoslovak international law literature, a codification treaty serving in the first place the written exposition of the general international law, a quality not met by newly provided rules in such treaty. Favouring of the treaty on the grounds of its written character to the detriment of custom because of its unwritten form has in the Czechoslovak Doctrine of international law the most serious consequences possibly there where written statements acquire principles of international law in the acts of potentially universal international organisations. To them should allegedly belong the part of general international law or even of a “constitution” wherefrom the validity of concrete rules of the international law is derived, though the very acts of such organisations are but of a recommending nature and the principles contained therein are no rules of international law whatever, being just a generalising interpretation of concrete rules of this law.

Introduction. The development of the national legal system cannot take place in isolation from the legal ideology. In its turn, the legal ideology determines the goals of the influence of legal propaganda: the ideas-values, that are key to the influencing nature of propaganda, remain basic in the legal ideology. Despite the fact that ideas-values set the goals of the impact of legal propaganda, the effectiveness of the propaganda itself depends directly on these value ideas. Theoretical analysis. The direct influence of legal propaganda is expressed in the assimilation by the individual of those stereotypes and behavior patterns that the individual was aimed at. Indirect (mediated) influence of legal propaganda is also possible. Indirect influence can be spotted in cases where there was no targeted impact, but the result is manifested in the reinforcement of previously formed attitudes, possibly through intermediary subjects, as well as under the influence of the social environment. Any law in force is an indicator of those ideas about law that have developed in a particular society and in itself also has a law-propaganda effect. Legal propaganda is not limited to its legal component: the ideological component also includes subjective components responsible for the perception and understanding of legal behavior, whether it is the political experience of the addressee, his / her sense of justice and civic responsibility. Accordingly, there is a dependence of the effectiveness of the perception of legal propaganda on the level of legal awareness: at the level of professional legal awareness, we believe that a high level of perception of legal propaganda can be registered (depending on the source of propaganda, scientific methods, manipulative means, sensitivity to public assessments, critical comprehension, etc.). Results. An extensive system of state propaganda, including legal propaganda, ensures the formation of common value orientations in society. State propaganda is multifaceted, but it is always in line with the legal field. It is concluded that propaganda is one of those active components, means that ensure the real effectiveness of legal ideology. If the legal ideology is presented as a complex mechanism of influence for the formation of certain behavior, propaganda is the means of operation of this mechanism, both in the activities of state structures and in the work of civil society institutions. It is emphasized that since the legal ideology is always tied to the results of the legal understanding of the world, the specific impact of the legal ideology is ensured by legal propaganda.

The rule of law is a traditional concept much used but little examined in its current magnitude. It is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or totalitarian regimes to constitutional democracy. Moreover, rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. However it is not clear what precise characteristics the rule of law must possess to ensure a working constitutional democracy. Thus there is no consensus on what rule of law stands for, even if it is fairly clear what it stands against. In order to determine how the rule of law might contribute to establishing the legitimacy of constitutional democracy in a contemporary pluralistic society, I shall first focus on the essential jurisprudential characteristics of the conception of rule of law in three different legal traditions German, French and Anglo-American and then on the contrast between procedural and substantive safeguards. Secondly I will try to point out the apparent convergence which has occurred between these different traditions. Finally I will describe how rule of law could reconcile the need for predictability with that for fairness in its “globalized” formula, which has been recently shaped by sovranational hard law and soft law rules with particular reference to the Venice Commission activity . The idea of the rule of law as the foundation of modern states and civilizations has recently become even more talismanic than that of democracy, but what does it actually consist of? So far, on one hand scholars have ascertained that, in the broadest terms, the rule of law requires that the state only subject the citizenry to publicly promulgated laws, that the state’s legislative function be separate from the adjudicative function and that no one within the polity be above the law. Moreover, that rule of law is one of the three essential elements of modern constitutionalism with protection of human rights and limitation/separation of government powers. We’ve also realized that in absence of the rule of law constitutional democracy would be impossible and that the rule of law is a cornerstone of contemporary constitutional democracy as underscored by its paramount role in cementing all of the transitions from authoritarian or illiberal regimes to constitutional democracy1. Still, on the other hand we’ve found a paradox at the heart of the rule of law, since that ideal demands certainty and condemns ambiguity in the law, but the ideal itself appears unclear and somehow uncertain. As a matter of fact “there is no consensus on what the rule of law stands for even if it’s fairly clear what it stands against”2. Like the concepts of equality or liberty the descriptive meaning of the rule of law is dependent on the prescriptive meaning one ascribes to it. Consistent with this, the rule of law has come to mean different things within different legal traditions, even within a single tradition it is often not clear whether the rule of law ought to be largely procedural or substantive and a few constitutional texts make express reference to the concept German, Turkish, Spanish and some of the new East-European constitutions . Then, in order to determine whether and how the rule of law might contribute to establish the legitimacy of constitutional democracy in the contemporary pluralistic society it is necessary to deal with the following issues. Firstly we have to observe the connection between rule of law and constitutional democracy and modern concept of the rule of law in three different legal traditions. Secondly we will explore the progressive convergence which has occurred between these notions during the 20th century due to the increasing internationalization and transnationalizations of the rule of law. Thirdly we will evaluate the usefulness of addressing the rule of law as a practical legal concept still able to guide and to constrain the exercise of democratic power.

The field of law and development examines the role of law, legal institutions, and legal systems in economic, social, and political development. As a comparatively recent field emerging in the 1960s, law has become an increasingly important aspect of the issues and debates surrounding international development, particularly since the 1990s. Debate continues over the meaning of “development” and what constitutes international development law, as well as over theoretical approaches: the character, role, and impact of legal institutions and development actors; the structures and processes of development; and the principles and norms that are already or arguably ought to be in the system. International development law generates a range of practical challenges, including implementation and enforcement of a right to development; the role of state, and the role of an increasingly globalized civil society; the rule of law; environmental sustainability; land reform; poverty and aid; issues of gender in law and development; law-building in post-conflict situations; transparency and accountability for donors and recipients; and the relationship between human rights, social justice, and rule of law. The centrality of sustainable development, the complexities of globalization, the private sector, civil society, new technologies, and the rise of emerging powers—some as new “nontraditional” donors—further add to the necessity and importance of understanding law and the sustainability of development. Together, these factors of change and transformation provoke new thinking and debate within this field on the role of the state in development and how the international legal rules of the game should operate. From the perspectives of developing countries, primary issues of concern relate to development cooperation and pro-poor, inclusive growth; improved access to trade for small enterprises; development effectiveness; South-South dialogue; climate change; and low-carbon development. Environmental protection and sustainable development represent significant challenges for international law-making, while also offering innovative solutions to some of the systemic problems of the international legal order. One central thrust of contemporary analysis and practice in law and development is the search for better understanding of the relationships between social and cultural factors and international development law in promoting more multidisciplinary approaches. Another central theme is the role of the state in development. The state is not simply a formal legal institution, but has both internal structures of legal competence and external, international legal commitments. There is a pattern of litigation history between the compatibility of the two, with implications for development law. Extensive debate continues over what constitutes development, why and how developing countries should pursue it, and what the eventual goal ought to be. This debate is necessary in retaining the vitality and practical relevancy of law. Development constitutes a form of social and societal change, and the relevancy of law depends on its responsiveness to such change; as such, the role of law in development should be of significant, if not dominant, importance.

I INTRODUCTION In common-law legal orders, public power is supposed to be exercised in accordance with the rule of law. Administrative law, the law that governs the exercise of power by public officials, is the body of rules and principles developed by judges to ensure that when public officials act, they act in accordance with the rule of law. Severe tensions can arise within the common-law understanding of administrative law when a legislature enacts a law that meets the legal order's formal criteria for validity, yet purports to exempt officials from the requirements of the rule of law. If those officials' decisions are challenged before a court, should the court declare them invalid simply on the basis that they fail to accord with the rule of law? Judges who adopt positivistic theories of law will generally answer no to this question, while judges of a more natural law bent will tend to answer yes. The former will determine a law's validity based only on the criteria explicitly set out in the positive law of their order, while the latter will think that there is more to the question than positive law--namely, the transcendent moral values of the rule of law. Although judges of a natural-law bent will likely appreciate the tensions better than positivistically inclined judges, a more sophisticated response to the problem is available than one that simply reduces it to a question of whether a law offensive to the rule of law is or is not a law. That response presupposes a natural-law understanding of the rule of law, one which holds that the value content of the rule of law transcends what any formal source of law declares the law to be. However, such a response does not require that a law is always invalid when it fails to comply with the values of the rule of law. Rather, all it requires is that the tensions created by such a law are understood as tensions internal to legal order, tensions which must be resolved in order for that legal order to sustain its claim to be such--an order constituted by law. Thus, judges are not necessarily always able or even often best suited to resolve such tensions. An exploration of this response begins with an account of how judges in common-law legal orders have found the norms of international law, in particular international human rights law, helpful in elaborating their understanding of their role in upholding the rule of law. Indeed, international human rights law has helped greatly to clarify the idea of the rule of law on which the judges rely, both in terms of the interactions among its components and the assumptions that hold it together. Judges have found international law particularly useful in ensuring that the rule of law is respected in an area in which traditionally positivistic judges have deemed the rule of law inapplicable--namely, in the exercise of public power, which is based, not on law, but on the prerogative of the executive to deal with immigration and national security as it sees fit. Natural-law judges have been amenable to the influence of international law because their understanding of law and the rule of law rejects positivistic assumptions that lead to the marginalization of international law, even to its very claim to be law. However, international legal bodies have proven capable of introducing the same sorts of tensions--tensions often created in the areas of national security and immigration. One might say that these natural law judges, working within the common law tradition, have paid international law the compliment of not only recognizing its claim to be law, but also of considering it to be constitutive of their understanding of the rule of law or legality, so that public officials must comply with international law if they are to abide by the rule of law. Thus, it is incumbent on the international bodies charged with making decisions affecting the interests of individuals subject to their legal regimes to repay the compliment. …

The article examines the relationship between legal ideology and legal awareness as two interconnected levels of legal consciousness that shape a coherent legal culture within society. Special attention is devoted to the fact that under conditions of war-related threats and pervasive informational distortions, law acquires not only a regulatory but also an identity-forming dimension, ensuring the unity and resilience of the state. Legal ideology is defined as the rational and theoretical level of legal consciousness that sets value-based orientations and conceptual foundations for legal development. Legal awareness is explored as the practical level of internalizing law, encompassing knowledge of legal norms, mechanisms of their implementation, readiness for lawful behaviour and the ability to apply abstract principles in concrete situations. It is emphasized that the effectiveness of the legal system depends on the synergy of these levels: ideology determines the strategic vector, while awareness ensures its practical embodiment. The article also stresses the significance of strengthening national legal ideology and raising the level of legal awareness in wartime as key factors for shaping legal culture and overcoming legal nihilism. It is concluded that legal awareness functions as an instrument for realizing the value potential of legal ideology, and their interaction determines the quality of legal consciousness and society’s capacity to reproduce legal values. Additionally, it is emphasized that these processes ensure the continuity of legal development, promote the formation of stable behavioural models and support the adaptability of the legal system to external challenges. It is further noted that the integration of ideological and practical components of legal consciousness creates the necessary conditions for shifting from a declarative perception of law to its actual functioning as a value-based and regulatory foundation of social life, enhancing individuals’ ability to navigate a complex legal environment and respond consciously to emerging socio-legal challenges.

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

The article deals with the interrelation between innovation and ideology of law. Particular attention is paid to the most important innovative objectives of ideology of law. The author makes a thorough analysis of the process of emergence of a new, innovative legal idea, since the transformation of a new idea into theory, legal principles and concepts is one of the key moments of the process of innovation in law. The author believes that the legal ideology is destined to support, develop and disseminate innovative ideas related to universal human values: rights and freedoms of an individual, democracy, rule of law, legitimacy, civil society, socially-oriented market economy. The paper notes that the essence of innovative legal ideology provides for the process of identifying theoretical consciousness, coordination and harmonization of various public interests by means of reaching a social compromise. Moreover, in the author's opinion, when innovative elements are introduced, the legal ideology should contain a great moral potential, which implies ensuring the rights of an individual, support, protection and development of the family. The most important task of an innovative legal ideology is to create legal ideas regulating the penetration of national culture into the legal system. In addition, the innovative legal ideology is aimed at developing ideas of economic relations regulation. Modern ideology can not just state the movement towards a self-regulating market economy. The innovative legal ideology makes it important to express a clear position concerning such processes as free trade, entrepreneurship, property issues.

Evolution of the activities of states as reflected in legal and political Teachings

The paper examines the objectives, content, and significance of legal reform from an axiological perspective. Utilizing the communicative methodology, it investigates legal ideology as the value foundation of legal reform. Particular empha sis is placed on analyzing the content and role of the legal archetypes of etatism and conciliarity in the ongoing legal reform in Russia. This analysis leads to the conclusion that legal reform constitutes a complex of radical changes (transformations) in the legal reality, undertaken with the aim of constructing a highly effective mechanism for maintaining conflict-free coexistence within a specific society. Legal reform accumu lates and articulates the conventional values of society and determines the intentionality of legal development. Legal reform is directed not only toward partial modifications of specific issues within the legal system and the transformation of legal regulation in response to changing societal relations, but it is also intended to construct a fundamentally new legal reality. This elevates the significance of legal ideology as a value-based foundation for reform. On the one hand, ideology shapes the trajectory of legal development and influences the consciousness and behavior of citizens, thereby determining the effective functioning of both society and the state. On the other hand, legal ideology can be viewed as a conventional outcome of the value reflection on legal development from previous epochs, serving to explicate a unified system of spiritual-moral and cultural-historical values within the legal reality.

This research focus on study the synthetic legal ideology and social justice from legal philosophy. On literature there are debatable of legal ideology in legal philosophy, it is about meaning of justice too. According philosophy of natural law, legal ideology is legitimation of virtue people behavior and eternal justice for human being. Opposed to the philosophy of law positivism, there is no place to discuss ideology of justice in science of law, because no criteria and no reference, no argumentation about just or unjust law. Essence of justice is correct applied rule of positive law to settlement dispute, called a procedural justice or legal justice om the contrary to substantive justice. On Marxist philosophy justice is an ideology essence power for socialism community, opponent capitalistic-liberalism philosophy that justice not for all but justice and rule of law is illusion only. Hinduism philosophy there is only moral justice its dharma. The first duty of King to realized dharma, integrated politics, economics, social, and culture in reality high moral standard behavior of human being. It aims realized prosperity for people in the world. Compatible with based of State Philosophy of PANCASILA are legitimation Indonesian system of law, core aim realized “social justice”. Essence distribution all national asset, taxation, regulation of wages for workers welfare, wealth, education, allocation houses and also distribution natural resources for benefit of all people of Indonesian. It regulation equality benefit constitute and accountability our Government. According The 1945 Constitution of The Republic Of Indonesia to reach Indonesian justice and prosperity.

<i>Tying the Autocrat’s Hands: The Rise of the Rule of Law in China</i>, by Yuhua Wang. New York: Cambridge University Press, 2015. 197 pp. US$28.95 (cloth).