In China, “constitutional laws” refers to “the Constitution and relevant constitutional laws”, which constitute a legal category. They stipulate the fundamental rules of social institutions, state regimes, the basic rights and obligations of citizens and the principles regulating the activities of state organs. Those issues not only reflect the essence and the basic principles of the socialist legal system, but also construct the fundamental principles of all specific laws of China. Among various classical theories on law and society, Emile Durkheim took social solidarity to be a central object of sociological analysis, which binds a society. To examine the changes of social solidarity, law is viewed by Durkheim as an external index which symbolizes it. Since law reproduces the principal forms of social solidarity, different types of social solidarity which correspond to different types of laws are identified: mechanical solidarity and organic solidarity. The type of solidarity which corresponds to restitutive laws is “organic solidarity”, which concerns a source of social cohesion, i.e. the division of labour in society. In modern societies, individuals depend upon each other in terms of their differences from others and restitutive laws are prevalent. For Durkheim, constitutional laws including the Constitution are categorized as one type of restitutive laws, whose changes are indicating the changes of solidarity in a society. This paper analyzes the changes of the PRC constitutional laws since 1982 by applying Durkheimian approach. It focuses on using Durkheim’s theory to analyze the changing nature of Chinese Constitution and relevant constitutional laws - from “Rule of Men” to “Rule of Law”. Changes in other aspects such as content, variety and so on are also discussed. It should be noted that there would be a dilemma between Durkheim's original thesis and the findings obtained from Chinese society. Through explaining the dilemma, a deeper understanding on the changes of social solidarity and constitutional laws can be made. Although Durkheim’s theory has made a tremendous contribution to socio-legal studies, it contains inevitable limitations which bring challenges from sociologists to many aspects of his work. This paper also discusses relevant limitations of Durkheim’s approach and makes supplementations accordingly. For example, the author argues that the changes of law also actively affect the changes of social solidarity and the changes of Constitution not only reflects but also leads or directs the changes of Chinese social solidarity, which serves as a supplementation of Durkheim's theory and shed light on relevant theories of law and society.
|Publication status||Published - 13 Dec 2018|
|Event||11th East Asian Conference on Philosophy of Law = 第十一届东亚法哲学大会: Justice, Dignity and the Rule of Law = 正义、尊严与法治 - The University of Hong Kong, Hong Kong, Hong Kong|
Duration: 13 Dec 2018 → 14 Dec 2018
|Conference||11th East Asian Conference on Philosophy of Law = 第十一届东亚法哲学大会|
|Period||13/12/18 → 14/12/18|
|Other||Centre for Chinese Law, The University of Hong Kong|
HAN, P. H. (2018). From "Rule of Men" to "Rule of Law"? - A Durkheimian Approach on Analyzing Changes of the PRC Constitutional Laws. Paper presented at 11th East Asian Conference on Philosophy of Law = 第十一届东亚法哲学大会, Hong Kong, Hong Kong. https://www.ccl.law.hku.hk/copy-of-conference-venues-2