One of the main challenges to legal methods is that it will destroy legal certainty, which constitutes the core of the rule of law. Judicial decisions are, above all, “decisions according to law”, and legal certainty in this respect is concerned with the “range of normatively possible application”. Although this range of application in legal interpretation and in the case of continued legal making are both indeterminate, yet, on one side, the wording of legal rules, the discourse regulated by rational procedural rules, legal argumentation through stare decisis and dogmatics, adherence to special interpretative means of law and their rank, and compliance with demand from constitutional order all greatly reduce the discretionary space of judges; while on the other side, in the process of continuous legal making, legal certainty must be considered in balance, and it also plays a role in the burden of argumentation and the rule of collision, which in turn largely offsets the loss of certainty caused by overcoming the wording of legal texts. There exists the possibility for legal methods to satisfy the “maximum certainty in law”, and thus there is also the possibility to achieve the rule of law. The theory of legal methods cannot be separated from the value theory behind it in the process of transplantation from abroad. Keywords: legal methods; decision according to law; legal interpretation; legal certainty; rule of law
Selected Papers of The Jurist (法学家), Volume 5
In contrast to traditional state-led governance, intensifying environmental degradation in China has seen ‘new’ forms of governance that criss-cross state and non-state boundaries. This chapter examines the interplay of political participation, environmental movements and state practices, focusing on the case of contemporary China. With a comparison with Western equivalents, the chapter finds that the political authorities respond to environmental activism by a combined mechanism of public inclusion and exclusion. The public is often excluded from participating in official planning processes because the range of policies open to it is limited, even as such public participation in general has featured in only a few handpicked geographical locations where the government is relatively open to such participation. The general public attitudes to participating in formal environmental governance broadly divide into three: willingness to participate; opposition; and no response, depending on the issue in question or even regarding the same issue over time. Five main scenarios of interaction between the Chinese public and the state are presented to assess the array of possibilities surrounding political participation in environmental matters. These five scenarios display complex circumstances in their own right, while underscoring the dynamic nature of political participation concerning environmental matters in contemporary China. The conclusion considers how political ecology research can build on contemporary knowledge about China’s environmental movements, political participation and state practices.
Lei Guang and Yang Su
China has experienced a dramatic increase in citizen protests and civil unrest in the past two decades. As aggrieved citizens grow more assertive in their demands, government officials increasingly worry about social instability. Stability maintenance has become an obsession of the Chinese state, a focal point of attention for its political-legal apparatus—namely the Party committee, the police, the courts and China’s unique petition system. Previous research has shown that Chinese citizens adopt a variety of forms of protest, from everyday forms of resistance (e.g. foot-dragging, work stoppage, etc.), to moral economy remonstrations (e.g. pressing for livelihood relief by appealing to traditional and socialist values), to rightful resistance (e.g. protest by appealing to official ideologies and policies). They lodge complaints at every level of the Chinese government, frequently skipping levels to appeal to higher authorities with jurisdiction over their cases. They adopt tactics that cover a wide gamut of action types, including rallies, strikes, sit-ins, road blocking, gate crashing and street violence, administrative litigation, and individual and collective petitions.