Political Law Notice

"Political Law" General Preface

"Political Law" As a popular concept, it can be considered, but it is difficult to explain. This is just like the confusion of Augustine when facing the concept of "time": "What is time on earth? No one asks me, but I know it clearly. If someone asks me, I want to explain it, but I am at a loss." It is equally difficult to explain what political jurisprudence is. However, although this is a confusing question, some tentative explanation should be given.

The most convenient way to explain it is to interpret political law as: a general term for theoretical theories about political law; or more specifically: political law is based on the social phenomenon of political law. The general term for scientific activities and cognitive results. Although such a conclusion is easy to draw, further questions will follow immediately: what is the political law? On this question, some authoritative answers can be found. For example, Rousseau proposed in the Social Contract that political law is the law that stipulates the "ratio of the sovereign to the state. In the book "On the Spirit of Law", Montesquieu regarded political law as a law to adjust the "relationship between the ruler and the governed", thus placing political law in a parallel position with civil law and international law. According to Montesquieu's thinking, political law is similar to what is now called public law, but it cannot include public international law. In contemporary China, some scholars, on the premise of strictly distinguishing between political law and constitution, divide the content of political law into four parts: political subject law, political relationship law, political behavior law and political procedure law. This seems to be a clear and clear definition, but it still contains some obvious doubts: what is politics and what is political subject, political relationship, political behavior and political procedure? Besides, if the content of political law is divided into these four parts, the theoretical doctrines about these four parts can certainly be attributed to political law, but can it be equated with political law?

In order to understand political law more deeply, it is advisable to start from two different angles. On the one hand, based on the discipline of law, political law can be understood as: the legal theory of politics. Such political jurisprudence focuses on the study of rules, systems and other related issues related to politics. Specifically, in the current legal system, the scope of such political law can cover the basic theories of constitutional law, international public law, and administrative law, criminal law, procedural law and other departmental law. This kind of legal theory on politics can also be understood as "basic theory of public law" or "philosophy of public law". As for the technical content of public law, it should not belong to the field of political law, because its political implication is relatively thin. For example, some technical problems in the process of litigation, such as the difference between documentary evidence and material evidence, as a legal problem in the strict sense of litigation, can not be regarded as a political legal problem. However, how to deal with the relationship between procuratorial power and judicial power in the process of litigation, and whether procuratorial power can supervise judicial power, It can be included in the theoretical scope of political law. For another example, in the field of criminal law, the difference between robbery and robbery does not belong to political law, but the theoretical issue of "crimes against humanity" or "crimes against national security" is a political law issue. The "death of Socrates", "death of Jesus", and even "death of Dandong" in criminal vision can be used as a classic case of political law. It can be seen that political law, as a legal theory about politics, is not a new discipline completely independent of the existing branches of law; in fact, there is no political law that has nothing to do with constitutional law, international law and other secondary disciplines; political law, as a legal theory, is the product of the reclassification of various branches of the legal system.

Political jurisprudence, on the other hand, can be understood not only as a legal theory about politics, but also as a political theory about law. From this perspective, political law can also be understood as "legal politics". Political law at this level is based on political science, and its focus is not on legal professional issues such as rules and systems, but on revealing the political implications of law, rules, and order. The typical forms of political jurisprudence in this sense are Locke's On Government, Montesquieu's On the Spirit of Law, and the Federalist Papers of the United States. Although these classic documents have a high citation rate in legal works and are often regarded as legal classics, the focus of these classic documents is not on professional law or law, but on political theory-of course, When discussing political theory, they also discuss law, but law is mainly used as an integral part of the political system. From the perspective of knowledge occurrence, the prevalence of political law in the sense of law and politics in the classical period has a vital root: in that era, the division of disciplines in the modern sense has not yet been completed, and the relationship between political science and law The boundary is not clear, and it is not even particularly concerned by classic writers; they do not have the popular "professional slot" consciousness. Starting from the practical needs of public life, civilized order and political community, classical writers put forward the political law (legal politics) we see now, as well as the political philosophy inseparable from it. The above two aspects show that political law can be understood as both a legal theory about politics and a political theory about law. The difference between these two types of political jurisprudence may be summarized as the difference between the appeal of legitimacy and the appeal of legitimacy. The legal theory of politics is mainly to study the legitimacy of politics, that is, to adjust and regulate the legal rules of politics. For example, the study of the text of the 1787 Constitution of the United States and the 1982 Constitution of China is a typical legal theory about politics. The political theory of law is mainly concerned with the question of the legitimacy of law, which can also be extended to the question of the legitimacy of order. For example, the study of the preamble of the Chinese and American Constitution is a typical political theory of law. From the specific content point of view, the preamble of China's current Constitution is more than 1800 words long, and the preamble of the U.S. Constitution is less than 100 words. However, both have one thing in common: they provide the ultimate legitimacy for the main body of the constitution. Basis, and finally make the main body of the constitution have some legitimacy. In short, the legal theory of politics is mainly to clarify the basic rules of political order, and the political theory of law is mainly to clarify the basic rationale of political rules.

In the perspective of contemporary political law, Hayek's "Principle of Free Order" has also been translated as "Charter of Freedom". These two parallel translations just show that the "principle of order" has the nature of a "charter". Therefore, to a considerable extent, this work shows us a political theory about law and embodies a political law aimed at seeking legitimacy. It is Dworkin's "take rights seriously". Although this book is also political liberalism, its focus is on law, which shows us a legal theory of politics and embodies a political jurisprudence aimed at pursuing legitimacy. Of course, these two dimensions of political law can not be completely separated, can only be said to have their own focus. I think that by combining these two types of political law with their own emphasis, we can outline a relatively full concept of political law, and can also clarify the basic purpose of this "Political Law Research.

With the support of Law Publishing House, we founded and edited "Political Law Research" in the hope of advancing political theories about law and expanding legal theories about politics at the intersection of law and political science. We look forward to the advanced assistance of all parties, so that through bit by bit of negotiation and dialogue, we can respond to the practice of law and politics, gather the thought of law and politics, and nourish the civilization of law and politics.

Yu zhong

March 2014