On the“Law and Literature”Campaign in the Chinese Context and Its Significance for the Construction of China’s Legal System

Chen He

(School of Foreign Languages Northwest University of Politics and Law，Xi’an Shaanxi710122)

Ⅰ.The developmental process of the“Law and literature”Campaign in the West

1.Two problems

The grand justice，Benjamin N.Cardozo，is the first one to discuss the relationship between law and literature，who interpreted the subject of the“l(fā)iterary genre of judicial opinions”in his speech in the end of 1920s.Professor White published the I-magination of Law in 1973，arguing that literature research should be part of the legal education because there are many similarities between the literature research and the judicial verdict.Therefore，this textbook is known as the foundation of the“l(fā)aw and literature”campaign.Cardozo’s Research on Law and Literature was founded in the end of the 1980s，which marked the formal presence of the“l(fā)aw and literature”campaign on the stage of modern western jurisprudence.

The relationship between law and literature is complicated for scholars，which can be studied from many perspectives.As professor Feng Xiang holds that“l(fā)aw and literature”pays attention to the practice of the right of speech of distinctive value orientation and meanwhile making the mainstream western law theory the criticism object，law and literature are both dependent on language，and both have similar interpretative way of writing，speaking and reading.The original research on“l(fā)aw and literature”develops around two problems，“l(fā)aw in literature”and“l(fā)aw as literature”.The former pays attention to literary works，especially subjects concerning the relationship between the literature texts of“l(fā)egal stories”and legal personality;the latter pays attention to the analysis of the introduction，writing and criticism of literature texts and the practice of legal rules.With the deepening of research，some scholars proposed the two concepts of“l(fā)aw through literature”and“l(fā)aw of literature”.

2.Multiple and post-modernist perspective

Influenced by the postmodernism and the reflection on western legal practice since the 1990s，the campaign of“l(fā)aw and literature”manifests many postmodernism features.Many legal personalities reexamine law from the perspective of diversified culture and postmodernism.Feng Xiang holds that“the left-wing and feminism put forward distinctive political aim and publicly maintain literary morality and ideology standard…more and more scholars expand the discussion to the field of audio visual art and mass media，and push the reflection on the western legal practice to the forefront of the campaign.”

Ⅱ.Interpretation of the“l(fā)aw and literature”campaign in the Chinese context

Due to the fact that“l(fā)aw and literature”has western theoretical background，the problem of“l(fā)aw and literature”should be examined by the specific Chinese context.“Law and literature”in the Chinese context refers to the research in the profound Chinese cultural deposits and special national situation，which is different from the traditional western development mode and theoretical features of the research of“l(fā)aw and literature”.

Impacted by the western campaign of“l(fā)aw and literature”since the 1990s，Chinese scholars have showed much attention to the development situation of“l(fā)aw and literature”in China.More and more scholars become aware that many valuable experiences can be obtained from the legal construction of China，and remarkable achievements have been made.

1.Characteristics of the“Law and literature”campaign in the Chinese context

As mentioned before，the profound cultural deposit and special national conditions contribute to the unique development mode and theoretical characteristics of“l(fā)aw and literature”in the Chinese context.The approach to the local resources is the distinguishing feature of the study of“l(fā)aw and literature”in China.

The legal environment of China leads to the different atmosphere of the theoretical research of law and literature from western campaign.Chinese scholars keep a cool and objective mind when viewing the western“l(fā)aw and literature”campaign in the research.They try to find out something enlightening to the local Chinese resources by pondering，analyzing and even criticizing as a“bystander”.Influenced by the traditional Confucianism，the western campaign of“l(fā)aw and literature”has less impact on China than on other western countries.Chinese jurists are positive about the postmodernism legal campaign and believe that it could promote the“l(fā)egal education.”

2.Meta-problems of the“Law and literature”campaign in the Chinese context

Meta-problem refers to the essential problem，which means that the restriction of surface conditions is got rid of and popular and essential problems are explored.The meta-problem of the“l(fā)aw and literature”campaign in the Chinese context refers to the essential problem of the research mode and future development of“l(fā)aw and literature”with Chinese characteristics in the specific culture and national situation of China.

Due to the continental law system of China，the writing habit and tradition of judicial judgments are totally different from those of America，England and France.Besides，the fact that law system of China pays attention to the quality of judicial judgments tends to lead to various limitations.Therefore，this kind of research can hardly be continued in China.

The current western campaign of“l(fā)aw and literature”shows the tendency of division，which is the result of theoretical development and the deviation of the understanding of law and literature after the theoretical expansion，which is a necessary side effect of implanting the western elite theory of“l(fā)aw and literature”to China.The different meta-problems of the theoretical research of western“l(fā)aw and literature”and Chinese“l(fā)aw and literature”can be found by examining the difference of the two types of division.The dislocation of western elite theory and China’s local resource is the reason for the disputes of the law and literature in China.The meta-problems of the research of the law and literature in China are the localization and secularization of the elite theory.From this sense，the law and literature in Chinese context serves as the bridge between the elite theory and secular society，with the function of the secularization of law.The localization and secularization of the elite theory involve the basic understanding of the law and literature in Chinese context.The“cold rationality”of China’s planned economy in the transitional period may bring opportunities of development for the social criticism function of the law and literature in Chinese context.Besides，the new research content of the law and literature in China bestowed by the profound literary traditions is likely to possess the Chinese characteristics.

Ⅲ.Significance for the construction of China’s legal system

Chairman Xi Jinping holds that the authority of law needs to be established among the masses so that people can fully believe law and apply law consciously.In this way，the legal spirit can be advocated and legal culture can be nurtured，thus forming a favorable atmosphere of“l(fā)earning law，respecting law，obeying law and applying law”in the whole society，which exert profound influence on the acceleration of building socialist law-ruling nation.In this context，“l(fā)aw and literature”can provide new thoughts，new perspective，new thinking pattern and legal transplantation to the legal construction of China.

1.Providing new thought for breaking through the traditional jurisprudence

The world view of the study of law in the age of enlightenment takes the lead in the field of traditional jurisprudence.On the other hand，profound risks have arisen in the legal view and order of universalism.The traditional law and the basis of philosophy ideology has begun to shake.The diversified，dynamic，susceptive and critical trend of thought has become prevalent.Local knowledge，special problems and informal standards are paid attention to.The“l(fā)aw and literature”campaign and the postmodern study of law study the legal phenomenon and legal problems from new diversified perspectives，which will shed light on the breakthrough of the traditional mode of the theoretical study of law.

2.Providing new perspective for understanding law

The“l(fā)aw and literature”campaign stresses the uncertainty of law.There is uncertainty in the understanding of legal texts and the process of legal deduction in that the balance between value orientation，public policies and different interests is likely to influence the judgment of the judge during the jurisdiction and finally influence the verdict.Therefore，from the perspective of the study of“l(fā)aw and literature”，the universality and objectivity of law may be lost.This perspective can help us to inspect the features and value of law from another perspective，which contributes to a comprehensive understanding of legal phenomenon and law，thus promoting the further development of the study of law and the constant improvement of law.

3.Providing new idea for legal interpretation

It is more acceptable that the pursuit of legal purpose is the most important part of legal interpretation.“Legal interpretation refers to the scientific interpretation of the content and meaning of legal norm and the specific understanding of the mind of ruling class in the legal norm，thus ensuring the accurate application of legal norm.”However，there are two theoretical problems concerning this view.The first one is how to find out the original legal purpose.The second one is how to prove that the original legal purpose is objective.More and more disputes about the different interpretation of the same legal rule have been witnessed in practice.The view of“l(fā)aw and literature”tells us that the significance of legal texts has shown its openness when different understanding and disputes arise.Among these different understandings，the authoritative interpretation is not necessarily supreme to public opinions.We do not intend to conclude from the view that law can be randomly interpreted，and that the significance of legal texts is not certain.Instead，it offers us a new thinking pattern，namely that all kinds of interpretation need to be paid attention to in the legal interpretation and that they should be allowed to understand each other and communicate with each other.The most practical interpretation views can be arrived at according to actual requirement，which should be suitable to the specific environment and time.

4.Law transplantation becoming possible

The“l(fā)aw and literature”campaign does not directly involve the problem of legal transplantation，but points out the key issue of western modern law.The postmodern study of law holds that law is local in a broader sense.Law belongs to“l(fā)ocal knowledge，which refers to not only the location，time and class of law，but also the context of law，namely the local features of the entire case and the relationship between them and the imagination of the local people.”As a result，as to the legal transplantation，the researchers of“l(fā)aw and literature”attach greater emphasis to the features of local law.However，it does not object the legal transplantation，but the blind transplantation which ignore the national situation.Besides，it pays more attention to the historical tradition of law.Meanwhile，the legal transplantation reminds us that we should not neglect the existence of western modern theories and the western hegemony ideology when we learn from them.

“Law and literature”provides a new path to view law and the world for the legal personality and other inter-disciplinary researchers.Viewing“l(fā)aw and literature”in the specific Chinese context can provide more valuable experiences for the legal construction of China，which deserves our attention and exploration.

Notes:

〔1〕馮象:《木腿正義》，北京:北京大學(xué)出版社，2007年。

〔2〕〔美〕理查德·A·波斯納:《法律與文學(xué)》，北京:中國(guó)政法大學(xué)出版社，2002年。

〔3〕〔美〕西奧多·齊奧科斯基:《正義之鏡—法律危機(jī)的文學(xué)省思》，北京:北京大學(xué)出版社，2011年。

〔4〕馮象:《法律與文學(xué)》，《北大法律評(píng)論》1999年第2期。

〔5〕李玄:《中國(guó)語(yǔ)境下的法律與文學(xué)及其元問(wèn)題透視》，《學(xué)術(shù)探索》2012年第3期。

〔6〕梁健康:《論“法律與文學(xué)”運(yùn)動(dòng)的后現(xiàn)代特征及其理論價(jià)值》，華東政法學(xué)院，2003年。

〔7〕蘇力:《孿生兄弟的不同命運(yùn)——〈法律與文學(xué)〉代譯序》，中國(guó)政法大學(xué)出版社，2002年。

〔8〕蘇力:《法律與文學(xué):以中國(guó)傳統(tǒng)戲劇為材料》，三聯(lián)書店，2006年。