First, the three meanings of "legal system"

The word "legal system" appeared in ancient China. "Life has a teacher, the legal system has been repaired, and it is embarrassing." (2) However, before liberation, the word legal system was rarely used. After liberation and before the Cultural Revolution, it was generally called "revolutionary legal system" or "people's democratic legal system". It was not until the Third Plenary Session of the Eleventh Central Committee of the Party that it was called "socialist legal system". In recent years, the term "legal system" generally refers to the following three meanings.

One is the law and system, and some only refer to the legal system. It should be noted here that modern society is not like the Middle Ages, and important systems usually have corresponding legal provisions or work within the corresponding legal scope. In this sense, the phrases "law and system" and "legal system" can be said to be basically synonymous. On the other hand, the words "institutionalization and legalization" are sometimes different. Legalization is of course institutionalization, and conversely, not all institutionalization is legalization. For example, a system that embodies inner-party democracy or democratic management of social organizations, enterprises and institutions does not or does not necessarily belong to the legal category. Moreover, the laws and systems mentioned here generally refer to the static sense, mainly referring to the provisions of relevant laws and systems, and a few are customary laws or other practices.

Second, the law in a dynamic sense, that is, a system composed of legislation, law enforcement, justice, law-abiding and supervision of law enforcement. Similar to what western sociologists call legal concepts. For example, the American sociologist R. Pound called law "social engineering" (3) and gave a broad explanation of the concept of law. In recent years, some young and middle-aged lawyers in China have introduced system theory into law, and often refer to the legal system as "legal system" or "legal system engineering".

Third, it refers to the principle of "acting according to law", that is, in the communique of the Third Plenary Session of the Eleventh Central Committee of the Party, "there are laws to follow, laws to be observed, law enforcement to be strict, and violators to be prosecuted". The "rule of law" in this sense is equivalent to the principle of "rule of law" and "country ruled by law" that western countries have talked about since 17 and 18 centuries.

In our daily life, the above three meanings are sometimes used alone and sometimes in combination, depending on different situations. For example, when we say a "complete legal system", we usually refer to the legal system in the first sense, that is, to formulate complete laws and regulations. The "legal system construction" we are talking about is mainly the legal system in the second sense-legal system engineering, which is to build all links from legislation to supervision of legal implementation. By "acting according to law", we mainly mean the rule of law in the third sense, that is, acting according to the principle of "acting according to law". Sometimes it can also refer to the above three meanings. For example, when we talk about terms such as "strengthening the legal system" and "improving the legal system", we can include all three meanings of the legal system.

It should also be noted that the above-mentioned third meaning, that is, "legal system" in the sense of the principle of "doing things according to law", has different expressions in different national languages. In the works of Marx and Engels, terms such as "rule of law", "country ruled by law" and "legal system" have been used on different occasions. In Lenin's works, the word "legal system" is used in both Soviet regime and bourgeois countries. Soviet legal works are generally used in this way. In the early days of liberation in China, the words "legal system" and "rule of law" were used in newspapers and periodicals. However, until the downfall of the Gang of Four, the "legal system" was generally used instead of the "rule of law". This phenomenon also seems to be influenced by Soviet precedents.

Second, there are different understandings of the meaning of "rule by law" and "rule by man" in history.

The debate on the rule of law and the rule of man in history mainly refers to the following three times. The first time was the different views of Confucianism and Legalists on this issue during the Spring and Autumn Period and the Warring States Period. Confucianism advocates rule by man (or rule by virtue and courtesy); Legalists advocate the rule of law. The second time refers to the different views of ancient Greek thinkers Plato and Aristotle on this issue. The former advocates the rule of man, while the latter advocates the rule of law. The third time refers to 17 and 18 century advanced bourgeois thinkers' views on the rule of law against feudal autocracy.

In these three debates, how do the rule of law and the rule of man understand the meaning of these two words? In order to explain this problem, we need to know what is the difference between the two sides. As far as the understanding of the meaning of rule by law and rule by man is concerned, these differences can be roughly summarized as the following three points.

The first major difference is: What does national governance mainly depend on? Is it law or morality? The theory of rule of man holds that the country should be governed mainly by sages and sages with noble morality through moral influence. On the other hand, theorists of the rule of law believe that it should be governed mainly by those who hold state power through compulsory laws (actually criminal laws).

China's different views on Confucianism and Legalism in ancient times reflected the above differences. For example, Confucianism believes that "Tao (guidance) is the government, and punishment is imposed by punishment, and the people are shameless." Tao is virtue, courtesy, shame and dignity. "(4)" politicians are right. The son is handsome and tall, who dares to be wrong? (5) Legalists believe that "saints can't govern the country by others' kindness to me, but they can't use it wrong." Therefore, it is necessary to "obey the law with virtue" (6).

The above differences are also reflected in the debate between ancient Greek thinkers on the rule of man and the rule of law. Plato advocated "politics of sages" in his masterpiece The Republic, arguing that there will never be peace for mankind unless philosophers become kings (7). He extremely despises the role of law and thinks that many legal provisions should not be imposed on "excellent people". If they need any rules, they will find them themselves (8). It was only after the failure of his ideal country scheme of "sage politics" that he called the law "second best" in his later works, that is, the second best choice.

Contrary to Plato, Aristotle advocated that "the rule of law should be superior to the rule of one person." (9) In western history, this is the first classic exposition of the rule of law. It should also be noted that Aristotle's statement on this issue is: "Which is more beneficial to be ruled by the best people or the best law?" (10) One of his main arguments that the rule of law is superior to the rule of man is that the rule of law is equal to the rule of god and reason, and the rule of man makes politics mixed with animal factors. Because most people can't get rid of animal desires, although even the best sages can't avoid enthusiasm. This often leads to prejudice when in power. "Law is the embodiment of God and reason, and it is not affected by any desire." (1 1) At the same time, he also argued that even in a country with the highest talent and morality as the ruler, "all government affairs can be governed by the whole law, and individuals can only play their talents on issues that cannot be incorporated into the law and lose their authority." (12) Thirdly, his argument for defending the rule of law involves two other major differences, which will be discussed in the next article.

The second main difference is: does the guidance of human behavior mainly rely on general legal rules or on specific guidance for specific situations? The theory of rule of man emphasizes concrete guidance, while the theory of rule of law emphasizes general rules.

This difference is reflected in the debate between Confucianism and Legalism in ancient China about the rule of man and the rule of law. In particular, some legalists stressed that the characteristics of law are size, pen and ink, and rules, which can be used as general norms of human behavior. But on the whole, there is no obvious debate between Confucianism and France about the difference between general norms and specific norms.

In contrast, the differences between Plato and Aristotle, ancient Greek thinkers, on this issue are quite prominent. An important argument of Plato's opposition to the rule of law is that the law is like a stupid doctor, prescribing prescriptions mechanically, regardless of the patient's illness. However, people's personalities are different, people's behaviors are complex, and people are changeable. It is impossible for the law to stipulate rules applicable to every special situation. Therefore, "what is best for everyone is not the full power of the law, but the full power of people who know the monarch and know the sages." (13) Aristotle pointed out that "the law can't be complete, and all the details can't be written, which could have been left to people to consider. People who advocate the rule of law do not want to obliterate people's intellectual concerns. They think that it is better to give this kind of consultation to everyone than to entrust one person. " (14) In his book Nicomachean Ethics, he further discussed the relationship between general rules and specific situations. "The law always provides general provisions, but in reality, some things cannot be included in the general provisions." (15) In this case, it is necessary to take balanced measures to correct the defects caused by the generality of the law, such as amending the law, allowing law enforcers to interpret the law according to the spirit of the law, and allowing judges to leave the legal provisions to make judgments.

The third major disagreement is: Should the political system be democratic or autocratic? The rule of law advocates democracy and harmony (including constitutional monarchy), while the rule of man advocates monarchy, absolute monarchy or oligarchy.

Plato advocates saint politics and philosopher king, that is, he maintains monarchs and oligarchs in the political system. Aristotle advocates that the rule of law is superior to the rule of one person, and also puts forward the view of supporting democracy and harmony. He believes that "the public can make better judgments than anyone else" and "most people are less prone to corruption than a few." (16) With the rise of civilian government, the monarchy ruled by one person is no longer suitable. Under the monarchy, if the heir is mediocre, it will inevitably endanger the whole country, but under the rule of law, this problem will not happen (17); At the same time, civilian regime means rotation system, that is, equal people are both rulers and ruled, which is "rule of law" (18). Here, Aristotle has directly linked the rule of law with democracy, * * and political system.

The differences between the theory of rule of law and the theory of rule of man in political system mainly appear in the political thoughts and programs put forward by some advanced thinkers during the bourgeois revolution in 17 and 18 century. In the debate between Confucianism and Legalists about the rule of law and the rule of man in ancient China, the difference between democracy and autocracy has never been involved. Because both Confucianism and Legalism maintain the monarchy or absolute monarchy in the political system (Legalism advocates severe punishment and strict laws). Therefore, we can't compare China's ancient legalists' theory of rule of law with 17 and 18 century western countries' theory of rule of law against feudal autocracy, or misinterpret the former as constitutional monarchy against autocratic monarchy.

It should also be pointed out that in ancient China, Confucianism and Legalism, and in ancient Greece, Plato and Aristotle directly and clearly put forward the words "rule by man" and "rule by law". On the other hand, in the western countries of 17 and 18 centuries, the dispute between the rule of man and the rule of law was mainly reflected in the fact that some advanced thinkers at that time, while criticizing feudal autocracy, hierarchical privilege and advocating the establishment of constitutional monarchy, separation of powers or democracy, demanded the rule of law and opposed the rule of man. At that time, the representative figures who defended the autocratic monarchy and hierarchical privilege did not directly and clearly put forward "rule of man instead of rule of law."

The rule of law advocated by advanced thinkers in 17 and 18 centuries is also closely related to the political system or political program advocated by them. For example, Locke (1632 ~ 1704), who advocates the establishment of a constitutional monarchy, thinks that legislative power is the highest and non-transferable state power, but it cannot endanger people's freedom rights such as life and property. The state legislature "should be governed by the established laws promulgated by the government, and the laws are equal to the rich and the poor, the powerful and the cultivators, and do not differ according to special circumstances" (19). Rousseau (17 12 ~ 1778), a French advocate of democracy, believes that "any country that practices the rule of law-regardless of its administrative form-I call it a * * * Republic; Because only here is the public interest ruling, and public things count. " (20) Paine, 1737 ~ 1809), who lashed out at the British monarchy on the eve of American independence, proposed that "King China in an autocratic government is the law, and similarly, the law in a free country should also be king" (2 1).

In the history of western countries, after Aristotle put forward that "rule of law is better than rule of man", British thinker Harrington (1611~1673) also put forward a similar view directly and clearly. He also tends to * * * and the system. At the beginning of his masterpiece Oceania, he pointed out that through the art of law, the secular society of human beings can be organized on the basis of equal rights and interests ... According to Aristotle and Li Wei (22), "this is the kingdom of law, not the kingdom of man." (23)

John adams (1735 ~ 1826), an American politician and the second president, wrote Harrington's thought of rule of law into the Massachusetts Constitution in 1780, stipulating the separation of state powers, "aiming at realizing a government ruled by law rather than a government ruled by men." (24)

From the three main differences, we can see that at that time, the rule of law and the rule of man endowed them with different meanings. In the dispute between Confucianism and law in ancient China, the rule of man means that the country is mainly governed by sages through moral influence, and the rule of law means that the country is mainly governed by people who master state power through compulsory laws. In the debate between Plato and Aristotle in ancient Greece, the meanings of rule by man and rule by law are more complicated. Rule by man not only refers to governing the country mainly by moral influence, but also refers to guiding people's behavior mainly by specific guidance according to different situations, and also refers to the rule of monarchs or a few oligarchs. The rule of law not only refers to governing the country mainly by laws that are not dominated by people's feelings, but also refers to guiding people's behavior mainly by general rules, and also refers to democracy, * * * and political system. In the anti-feudal struggles in 17 and 18 centuries, the rule of law mainly refers to democracy, harmonious system, rule of man representing absolute monarchy, hierarchical privilege and so on.

Thirdly, in the 1980s, the legal circles in China had different understandings of the related meanings in the dispute between the rule of law and the rule of man.

In western countries, since 17 and 18 centuries, the theory of rule of law in the sense of democracy, * * and system has won great victories. Words such as "rule of law rather than rule of man", "government ruled by law rather than rule of man" and "supremacy of law" are popular in the west. However, western jurists have always had different views on the specific contents or principles of the rule of law. At the end of 19, a.v. Dicey (1835 ~1922), a British constitutional scientist, put forward the famous three principles of the rule of law: no one should be punished for engaging in acts not prohibited by law; Anyone's legal rights and responsibilities should be tried by ordinary courts; Everyone's personal rights are not the product of the constitution, but the foundation on which the constitution is built. However, these principles were constantly opposed in the future and were considered to be out of touch with the reality of the 20th century (25). In 1950s and 1960s, western jurists held many international conferences around the theme of rule of law, but they did not reach a consensus on the specific content and principles of rule of law. With the rise of the "welfare state" plan, the power of the state is expanding day by day, and there was once a dispute between "welfare state" and "rule of law" among western jurists. But this is no longer a dispute between "rule of law" and "rule of man", because both sides advocate the rule of law. The main difference is that one side thinks that the welfare state means the strengthening of state power, thus endangering individual freedom and the rule of law. On the other hand, the welfare state, individual freedom and the rule of law can be combined with each other (26).

The debate on the rule of law and the rule of man in China (27) is different from the above three debates. First of all, one side of this debate can be called "rule of law", while the other side seems to be called "the combination of rule of law and rule of man" (hereinafter referred to as "combination theory") rather than "rule of man". That is to say, in the 1980s, there was a dispute between "rule of law" and "combination theory" in China law circle, but there was no dispute between "rule of law" and "rule of man". Secondly, this debate is related to their different understanding of the meanings of "rule by law" and "rule by man". To illustrate this point, we might as well simplify the basic arguments of both sides as follows:

Theorists of the rule of law: the rule of law should not be ruled by man, and the rule of law and the rule of man are opposite; The rule of law refers to the law that represents the will of the whole country, and the rule of man refers to the will of individual leaders. In other words, the rule of law represents democracy, and the rule of man represents autocracy and dictatorship.

Combinatorist: the rule of law and the rule of man are inseparable and must be combined; Laws are made by people and implemented by people. What is the rule of law without the role of people? In other words, the rule of law means doing things according to law, and the rule of man means that people should formulate and implement laws, and must pay attention to the role of laws.

The author believes that both sides advocate that China should strengthen socialist democracy and legal system; They also advocate taking the law representing the will of the whole country as the standard, not the will of individual leaders; Everyone will argue that laws are made and enforced by people. Without the role of people, there is no role of the rule of law. If the above conclusion can be established, then we can say that the main difference lies in the different understandings of the two words of rule of law and rule of man.

We might as well discuss further: what is the basis of different understanding of the meanings of the two words rule by law and rule by man? Theorists of the rule of law believe that the rule of law represents democracy and the rule of man represents autocracy. This understanding obviously directly or indirectly comes from the western understanding of the rule of law and the rule of man in the 17 and 18 centuries, which is still popular in the west today. Combinatorists' understanding of the rule of law and the rule of man seems to be related to the viewpoints put forward in the dispute between Confucianism and Legalism in ancient China. As mentioned above, the main differences between Confucianism and law on this issue at that time can actually be summed up as: whether to govern the country mainly depends on morality or law. According to our current understanding, morality and law can not be neglected in governing the country, from which it can be inferred that the rule of law and the rule of man should be combined. Moreover, at that time, Confucianism also emphasized that "the government is not good enough, and the law cannot be self-sufficient." (28) In addition, since the Qin and Han Dynasties, the thought and practice of the confluence of Confucianism and Legalism, and the rule of law and the rule of man have more easily led people to conclude that the rule of law and the rule of man are inseparable or must be integrated.

However, it should also be emphasized that in the 1980s, the understanding of the concept of rule by law and rule by man was different from that of ancient Confucianism. At least, Confucianism emphasizes the rule of man and the primary role of morality in governing the country, while combinators emphasize the combination of rule of law and rule of man, and the combination of legal rules and the role of people. In this sense, we might as well think that in the 1980s, combinators put forward another understanding of the meaning of the rule of law and the rule of man-an understanding that transcends various understandings of the meaning of the rule of law and the rule of man in history, that is, the rule of law refers to the legal rules that lead and govern the country; Rule by man refers to relying on people to formulate and implement laws. In this sense, the rule of law and the rule of man must be combined.

As early as 1980, the author made a speech at the seminar on rule of law and rule of man held by Beijing Law Society. At that time, the argument between the rule of law and the rule of man did not seem to be whether the rule of law and the rule of man should be combined or whether the rule of law should be used instead of the rule of man, but what the rule of law and the rule of man were. In that speech, I also said that in history, both pre-Qin thinkers and modern western thinkers had unscientific understanding of the rule of man and the rule of law, especially the latter's explanation was obviously closely related to the bourgeois "legal worldview", so "in China's socialist society, it is not appropriate to advocate the rule of law and the rule of man as slogans. In China, strengthening socialist democracy and legal system is an inevitable trend of historical development, but a series of conditions are needed to overcome many difficulties and obstacles. Advocating several slogans, including the slogan of "rule by law rather than rule by man", I have doubts about the promotion of strengthening China's socialist legal system. " At the same time, in my speech, I also opposed the simple negative attitude that some people advocated that the two concepts of rule of law and rule of man were unscientific, so it was inappropriate (29). Looking back on this speech now, I think the basic idea it expressed is consistent with this article, but at that time, I thought that it was unnecessary for us to advocate the rule of law and the rule of man as slogans, and this view should be revised. In recent ten years, the slogan of "rule by law, not by man" has been widely spread in China's legal circles and general public opinion circles. Most people in society have accepted the understanding that the rule of law represents democracy and the rule of man represents autocracy. We want the rule of law instead of the rule of man.

Generally speaking, we should respect the understanding of most people in society, that is, respect the principle of "convention", unless it is particularly unscientific or inappropriate. Understanding the meaning of the two words "rule by law" and "rule by man" is just like understanding what the meaning is. They are all formed, developed and changed under specific historical conditions.

Fourth, the relevant meaning in the proposition of "from rule of man to rule of law"

The proposition of "from the rule of man to the rule of law" will cause some problems, such as why we should change from the rule of man to the rule of law? What is the reason for the existence of the rule of man in the past (or even in the present)? How do we evaluate this phenomenon (including those who practiced "rule by man" in the past or now)? Why can't the transformation be realized immediately now? Why do you need to change gradually, or even change from a dual-track system to a single-track system? Wait a minute. Of course, we can answer from the above-mentioned understanding of the theory of the rule of law: the rule of law represents democracy and the rule of man represents autocracy, so we should "change from the rule of man to the rule of law." However, it should be noted that at present "rule of law rather than rule of man" can be understood as an abstract principle, but now the proposition of "transition from rule of man to rule of law" at least contains the following specific meanings: China was ruled by people or a certain degree of people in the past, and the "past" here generally refers to the period from the founding of New China to the Third Plenary Session of the Eleventh Central Committee, and may even refer to the period before the founding of New China. Obviously, when we are talking about "the past" (before the Third Plenary Session or even before the founding of New China), and even now there is "rule of man" (or "rule of man" to some extent), the meaning of "rule of man" here needs further discussion.

As far as the people who put forward the proposition of "changing from rule of man to rule of law" are concerned, what they call "rule of man" may refer to the following two meanings: First, some leaders are influenced by feudal thoughts, thus showing undemocratic ideological styles such as domineering and arbitrariness. This understanding of the rule of man can be said to be an extension of the meaning of 17 and 18 century. The other is that due to the specific historical environment, it is impossible to have a complete legal system, or because the guiding ideology of the party and the state is wrong and does not attach importance to the legal system, so leaders at all levels have to make decisions on various specific issues. Of course, it is also possible that the above two situations coexist alternately. When we talk about "the transition from rule of man to rule of law", we should consider all kinds of situations. The former situation should be denied, and the latter situation should not be called "rule by man". If we want to call it "rule by man", we need to give it another specific meaning, that is, leaders have to make decisions when the legal system is incomplete or neglected. This sense of "rule of man" is different from the rule of man in ancient Confucianism, different from the role of people in the 1980 s, and cannot be understood as autocracy or arbitrariness.