中國法政策檢討

CRITICAL REVIEW ON CHINESE LEGAL POLICY

Law is the most characteristically institutionalized and expressively formulated social system, while legal policy is the buttress supporting the construction of this system. Ever since 1979, China has been proclaiming to strengthen the legal system and many laws have been created. Even in the period before 1979, when there were few laws and merely any compliance of law, legal policy still existed and played significant roles in shaping the legal system. Legal policy reflexes the dominant social stances and ideological orientation of a society, which fashion the social norms (either legal or non-legal) and the regulatory regime in the society. The social norms shaped by the dominmt legal policy or mainstream ideology are compatible with the corresponding regulatory regime. Legal policy could exhibit itself either by clearly stated social normative documents, or exhibit by the dominant or the mainstream behavior rules or ideological mode. Particularly during periods of social transformation, when normative documents (including the legal texts) are not compatible with the dominant or mainstream behavior patterns or even the detailed rules of the normative documents (including the constitution, law, regulation, and government rules etc.) are not compatible with each other, the lega1 policy embodied in the norms is demonstrated openly. It is the job of legal and policy everts to identify and grasp the legal policy, which is concealed by the expressed or recognized norms and is the core of the social policy system, in order to promote policy changes and to implement social reform by creating norms and transforming the regulatory regime without causing unbearable costs of social upheavals. Policy formulation depends on the identification of objectives, which are in turn controlled by people's cognizance about the social reality (the problems faced and to be solved) and the basic value (the ethical issues of policy and law) adopted by the people. On the premise of the above theorem, we can further discuss questions, such as procedures for formulating policy and drafting law, the responding capacity of policy formulators and lawmakers, and the relationship between and among decision-makers, enforcement agents, and the public. This paper intends to take the inescapable obligation to review critically the evolution of law and policy in China over more than 60 years in the past, focusing on the trajectory of legal policy, its interplay with social norms and regulatory regimes, the logical relations between them, and the direction of their future development.