Chapter 2 Foreword to the Chinese version

I am extremely pleased that my jurisprudence works have been published in Chinese translation.For many years I have followed with great interest the efforts of the Chinese people to improve their social and economic conditions and to lay the foundations for a new human culture.Law is an important part of a nation's culture, and China has embarked on many important projects, including promulgating a new code of law.The purpose of these projects is to build China's legal system.It is my sincere hope that my account of the nature and role of law and the manner in which it is enforced will be of use to Chinese law students, legal researchers, and those who may wish to understand the fundamental issues facing legislators and legal interpreters. Readers are helpful.

Some people may think that it is impossible for a jurist like me who has been educated in Roman law, Germanic law and Anglo-American law to have a deep insight into the goals, sources and methods of Chinese law, because Chinese law is based on a different based on political, social and economic philosophy.However, I propose to raise the question, must a legal system be regarded as merely a reflection of a particular system of production and distribution?I think that any system worthy of being called a legal system must focus on certain fundamental values ​​that transcend the relativity of particular social and economic structures.Among these values, the more important are liberty, security and equality.The order of importance of these values ​​may vary from time to time, depending entirely on whether a legal system is primitive, feudal, capitalist or socialist in character.Moreover, all legal systems assert that the above-mentioned values ​​should be subordinated to certain imperative considerations concerning the public good, while the scope and content of the public good vary widely among the various forms of social organization.But while social orders may take different forms depending on the particular nature of social and economic institutions, I still believe that a social order that completely ignores or ignores any one or more of the above-mentioned basic values, cannot be considered a true legal order.

The above conclusion rests on the presupposition that there are some human universals that require legal recognition.Among these commonalities, the most important thing is how to coordinate the individual impulses and common impulses that normal people have.Almost every individual has an urge to self-actualization and personal development, and this urge often finds expression in voluntary actions aimed at the attainment of his life goals.As Marx and Engels put it in The German Ideology: Egoism, much like self-sacrifice, is a necessary form of personal self-affirmation under certain circumstances.The communist therefore never denies the "private individual" for the "common" self-sacrificer.

The values ​​of liberty, security, and equality are rooted in the individualistic element of human nature.The sense of freedom drives human beings to engage in purposeful activities aimed at developing their abilities and promoting their personal well-being.Mankind abhors restrictions on liberty which, without just cause, defeat the above purpose.The desire for safety drives humans to seek public protection against unlawful assaults on one's life, limb, reputation, and property.In modern society, it also requires public help to enable individuals to cope with certain situations in life, such as old age, sickness, accidents and unemployment.The demand for equality motivates human beings to struggle against unequal treatment that must be considered equal according to reasonable and accepted standards but is brought about by legal or administrative measures.It also drives humanity to oppose inequalities in wealth or access to resources, which of course are arbitrary and irrational.

The individualistic tendency in human nature and the communal orientation in human nature are complementary to each other.Man needs social interaction because it gives meaning to his life and keeps him from being alone.If a person is not allowed to participate in certain public activities related to the common good, he will feel lost, especially in today's complex and densely populated world.However, the social impulse does not necessarily bring an individual into harmony with the established social order.Socrates, Plato, Rousseau, Jefferson, Marx, Lenin, and Mao were all rebels in their respective societies.They are all determined to transform their respective societies by thought and action.Characters with this personality are usually products of an era in which the formation of a particular social, economic, and cultural life has reached its stage of decline.In a healthy and growing civilization, most people are expected to contribute to the well-being of society in proportion to their abilities.

The communal element of human nature is rooted in the recognition that the individual is incapable of realizing those values ​​he holds dear by his own efforts alone; he needs others to be fully aware of his desire for liberty, security, and equality .The reason why individuals accept the concept of public welfare, we can find the reason from the above understanding.We cannot say that this understanding is entirely the result of education and experience, nor can it be said that it is entirely the result of various environmental factors.In fact, man has an innate capacity that enables the individual to construct himself outside himself and to recognize the need for cooperation and joint effort.This is the faculty of reason.Without this ability, people will be at a loss in the maelstrom of irrationality, selfishness or instinct, which will lead to all kinds of hostile confrontations and conflicts among people.Rationality is the source of socialization and respectful behavior of others.The voice of reason tells us that certain moral and legal constraints on individual behavior are necessary in order to adapt our own needs to those of others and to give meaning to public life.

It is worth emphasizing that although these two elements of human nature are hereditary in their basic dispositions and potentialities, they do not operate simultaneously at all stages of an individual's life.The individualistic component is particularly prominent in childhood and adolescence.American psychologist Gordon Allport once pointed out: Although a baby is a dependent social being, he is by no means a social being.Even a two-year-old is still an unsocialized nuisance when he is measured by the standards that apply to adults. While the last sentence in the above text may be taken too far, it may be true that self-assertion tends to overwhelm selfless behavior in childhood.Experience also shows that we find rebellious and recalcitrant attitudes more often in adolescents than in those older than them.In Allport's words, as an individual matures, "individual tendencies tend to decrease in emphasis and intensity, while feelings of respect for others grow and expand."This psychological phenomenon can reflect the wisdom of nature.Young people must discover themselves, strengthen themselves and their sense of worth, and develop their talents to become individuals capable of contributing to the development of civilization.Self-transcendence in the service of a common purpose naturally presupposes self-actualization, although the process of socialization needs to begin at an early stage in the life of the individual.

This picture of human nature can be contested because it is too crude.It might be argued that human nature is not necessarily a mixture of individuality and sociality, but consists entirely or almost entirely of environmental forces.According to this theory, an individualistic society may, through example and education, guide individuals to become autonomous, self-reliant, and self-actualizing beings; whereas a collectivist society may try to mold people to become subordinate to the whole society part and prompt them to dedicate their energies to the realization of common goals first.In fact, only a society designed to encourage the coexistence of self-respect and respect for others will be likely to accept the picture of personality I have drawn.

There is some rationality in the above objection, but it is not quite the truth.what's right about it The point is that human nature is not a set of firmly defined, self-consistent traits, but rather a set of fundamental tendencies that are often in conflict.The direction these tendencies take and their dynamic force in the life of the individual are decisively influenced by ethical education and behavioral constraints.One society may do its best to promote the pursuit of individual happiness, encourage strong-willed competition, and moral self-determination; another society may emphasize the pursuit of common goals, the cultivation of cooperative attitudes, and the strict observance of collective moral principles.However, the dialectical interplay of personal and social motivations that most people have seems to place limits on any policy of extreme personalization or socialization.History shows that the desire for the recognition of individual rights can never be completely removed from the mind of man.Also, no society seems capable of eliminating the idea of ​​the common good, since it is rooted in the shared elements of human nature.Even in a highly individualistic country like the United States, the legal system does not ignore this value, although it is sometimes assigned a much narrower scope than in other countries.While the heart of the U.S. Constitution is the recognition of individual rights, the U.S. Supreme Court also recognizes an inherent power of the government known as "police power."The Supreme Court defined this power as the power to impose restrictions on private rights in order to maintain public order, security, morality and public welfare.However, the pluralism that dominates in the United States does not allow for the adoption of a uniform standard for weighing issues of public interest.

Viewed from another perspective, changes in social and economic policies in China and other socialist countries in recent years have been interpreted by Western observers as a series of adjustments designed to give greater importance to the individual elements of human nature. importance.The new policy appears to place increasing importance on the activities and roles of individuals in some sectors of the economy. It is my sincere hope that some day in the future the governments and peoples of this world will be able to agree more than they do today on the social and economic system that best suits human needs and aspirations.If this could be achieved, the polarization that now afflicts relations between nations would give way to a policy of human endeavor to reconcile individual and social ends and to promote economic prosperity, cultural development, and world peace.