A Research on Socialist Democracy and Rule of Law with Chinese Characteristics

By Guohua Sun

The theory of socialist democracy and the rule of law with Chinese characteristics is one of the important contents of the theory of socialism with Chinese characteristics, and it is also a basic component of the theoretical system of socialist law with Chinese characteristics. To understand the theory of socialist democracy and the rule of law

• Language: English
• Publisher: Canut Int. Publishers
• Release date: Mar 1, 2023
• ISBN: 9786054923663

Guohua Sun

Professor Sun Guohua was one of the founders of Marxist jurisprudence in New China and was awarded the title of "National Outstanding Senior Jurist" in 2012. He was also an honorary member of the Academic Committee of the Chinese Law Society, an advisor to the Chinese Jurisprudence Research Association, an executive director of the Dong Biwu Society for the Study of Legal Thought, the president of the Chaoyang Alumni Association, and the director of the Chaoyang Jurisprudence Research Centre of Renmin University of China.

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A RESEARCH ON SOCIALIST DEMOCRACY AND RULE OF LAW WITH CHINESE CHARACTERISTICS

Editor-in-chief: Sun Guohua

Contributors: Cao Lei, Gu Chunde, Sun Guohua, Yang Xiaoqing, Ye Chuanxing, Zhu Liyu

CANUT INTERNATIONAL PUBLISHERS

Istanbul–Berlin–London–Santiago–Cape Town

A Research on Socialist Democracy and Rule of Law with Chinese Characteristics

Editor-in-chief: Sun Guohua

Contributors: Cao Lei, Gu Chunde, Sun Guohua, Yang Xiaoqing, Ye Chuanxing, Zhu Liyu

Translated by Ge Weihong and Dennis Etler

Original Title: Zhongguo tese shehui zhuyi minzhu fazhi yanjiu (2015)

Published in cooperation with Canut International Publishers and Primus LTD, London.

This publication is supported by the Chinese Fund for the Humanities and Social Sciences.

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About the Author

Sun Guohua (1925-2017), a native of Yang Yuan, Hebei Province, was one of the first honorary first-class professors of Renmin University of China and a doctoral supervisor of the Law School. Professor Sun Guohua was one of the founders of Marxist jurisprudence in New China and was awarded the title of National Outstanding Senior Jurist in 2012. He was also an honorary member of the Academic Committee of the Chinese Law Society, an advisor to the Chinese Jurisprudence Research Association, an executive director of the Dong Biwu Society for the Study of Legal Thought, the president of the Chaoyang Alumni Association, and the director of the Chaoyang Jurisprudence Research Centre of Renmin University of China. He has edited several textbooks on basic legal theory and jurisprudence, and edited several monographs, including Marxist Jurisprudence: Principles of the Concept and Nature of Law, Principles of the Formation and Operation of Law, Theory of Socialist Rule of Law, and A Research on the Theory of Socialist Democracy and Rule of Law with Chinese Characteristics.

Acknowledgement

With the overall promotion of the cause of socialism with Chinese characteristics, and through long-term unremitting exploration and practices, contemporary China has gradually formed the path, the theoretical system and the system and culture of socialism with Chinese characteristics. The theme of this book is the theory of socialist democracy and rule of law with Chinese characteristics, which is an important component of the theoretical system of socialism with Chinese characteristics. Studying the theory of democracy and rule of law of socialism with Chinese characteristics is of great significance for enriching the theoretical system of socialism with Chinese characteristics, promoting the development of the rule of law with Chinese characteristics, and clarify some major issues in the current legal theory. In the theoretical system of Marxism, the rule of law itself is a part of state policy, therefore without discussing the issue of democracy in the sense of the state system and government system, it will be difficult to have an in-depth understanding of the issue of legal system and rule of law.

Given that one of the major characteristics of the theory of socialist rule of law with Chinese characteristics understands the rule of law under the premise and framework of democracy, we have juxtaposed the issues of democracy and rule of law as the overall subject of this book. Among them, an important idea embodied is that socialist rule of law is democratic rule of law and the people’s rule of law. Only when we have an in-depth under- standing of democracy can we have an in-depth understanding of the rule of law. Of course, since we didn’t prefer to enlarge the study subject, due to restrictions in regard to the length of this book, we are unable to fully discuss the theory of socialist democracy here, consequently this book will mainly focus on the study of the theory of socialist rule of law with Chinese characteristics. Of course, in this book when we have studied the issue of the rule of law, we have investigated the issue of socialist democracy with Chinese characteristics also from the perspective of the internal relation- ship between the rule of law, democracy and political parties and so on.

The theory of socialist democracy and the rule of law with Chinese characteristics can be expounded from many aspects, and different scholars have given various generalizations and understandings on this theory. We believe that the basic framework of this theory roughly includes the following points: the formation process of socialist democracy and rule of law with Chinese characteristics, its basic contents, its major characteristics, its social function and social foundation, its leading force, promotion process and the way to carry forward this undertaking forward. The theoretical exposition of these issues constitutes a complete system, which embodies explaining in an integrated manner the fundamental issues as, why China, as a big eastern country which is in the historical process of the current re- form and opening-up, social transformation and development should build democracy and rule of law, what kind of democracy and rule of law to build, and how to build democracy and rule of law, as well as explain the issues such as the Chinese characteristics and socialist characteristics of the theory of democracy and rule of law in the primary stage of socialism, so forth. In order to have a comprehensive grasp of the theory of socialist democracy and rule of law, it is necessary to grasp its internal relationship with the path and system of socialist democracy and the rule of law with Chinese characteristics.

Within the domain of democracy and the rule of law, there is a close internal relationship between system, practice and theory. The work of theoretical construction is the theorization of the existing system and practice, it should provide a theoretical explanation and explication for the existing system; however it is equally important that theoretical construction should not provide a subservient or an auxiliary explanation that sticks to the existing system and practice, rather it should provide a theoretical guidance and legitimate argumentation for promoting the innovation and the advancement of practices in the existing system. To accurately explore the theory of socialist democracy and the rule of law with Chinese characteristics, it is necessary to place the understanding of democracy and rule of law within the grand reform practice of contemporary China. The theory of socialist democracy and the rule of law with Chinese characteristics was gradually bred, formed and developed in the practice of contemporary reforms in China. There is no grand theory without grand practice. The unprecedented reform practice of China urgently requires a theory that not only reflects the universal principles of socialism, but which also has distinctive Chinese characteristics to guide this practice. At the same time, such a grand practice also provides the most abundant nutrition for the breeding and development of such a theory. Only through in-depth insight and understanding can we vigorously open up the path of socialism with Chinese characteristics and promote the advance the reform process of the socialist system with Chinese characteristics. In particular, we should pay attention to the vivid practice of democracy and the rule of law in contemporary China, so that we can truly understand the practical logic behind the generation of the theory of democracy and the rule of law with Chinese characteristics.

In order to accurately explore the theory of socialist democracy and the rule of law with Chinese characteristics, we have to place the theory of democracy and the rule of law in the overall field of view of the theoretical system of socialism with Chinese characteristics. Theory is not a simple appendage or vassal of practice. And, it should be acknowledged that, the formation and development of the theory of socialist democracy and the rule of law with Chinese characteristics has its internal theoretical logic. We should also recognize that the theory of democracy and the rule of law with Chinese characteristics is an important component of the theoretical system of socialism with Chinese characteristics, thus it also takes the whole theory of socialism with Chinese characteristics as its own development back- ground and guidance. Only visioning from the strategic height of what is socialism and how to build it and from this overall framework, can we have a more comprehensive and in-depth understanding of the theory of democracy and the rule of law of socialism with Chinese characteristics. Since the Reform and Opening-up, the development of the theory of socialism with Chinese characteristics has gone through three important stages, namely, Deng Xiaoping Theory, the important thought of Three Represents and the Scientific Outlook on Development. Three of them consecutively have played a decisive guiding role in the formation and development of the theory of socialist democracy and the rule of law with Chinese characteristics.

To further explore the theory of socialist democracy and the rule of law with Chinese characteristics, we must put democracy and the rule of law within the complete system of social relations and social governance. In the course of China’s reform, the Five-in-one general layout in respect to socialism with Chinese characteristics was formed. This general layout distinctly embodies all important aspects of China’s current state governance system. Therefore, the investigation and understanding of the democracy and the rule of law need to be placed within the Five-in-one general layout, moreover, this placement itself constitutes one important feature of our theory of democracy and the rule of law.

An important feature of this book is the comprehensive discussion of the issue of democracy and the rule of law and grasp the content, function, mission and driving force of democracy and the rule of law from many aspects of China’s reform and progress, such as the economic construction, political construction, cultural construction, social construction, ecological civilization construction, human rights cause, and from the aspect of the leadership of the Party.

To explore the theory of socialist democracy and the rule of law with Chinese characteristics, it is also necessary to understand democracy and the rule of law placed within the overall logic of development of human- kind’s political and legal civilization. Certainly, this theory is the inheritance and development of the achievements of human legal civilization. Only placing this theory in the overall logic of the development of legal civilization, can we highlight its important theoretical value and practical significance and also highlight our theoretical confidence. The good for- tune of a grand nation is that at a critical time for the development of the nation, the outstanding leaders with the spirit of historical responsibility, are able to respond to people’s demands, abandon rigid theoretical dogma and break through the shackles of old thoughts and ideas, put forward new theories and new ideas that can lead the practice.

The theory of socialist democracy and the rule of law with Chinese characteristics, embodies the leadership wisdom and governance thoughts of our contemporary outstanding leaders, embodies their sense of historical responsibility, sense of mission and spirit of devotion for the cause of democracy and the rule of law. As practical development is never-ending, knowledge of truth is never-ending and theoretical innovation is also never-ending. As the grand cause of socialism with Chinese characteristics is being steadily unfolded, and the practice of socialist democracy and the rule of law with Chinese characteristics is being steadily deepened, and under this magnificent background of the times. the theory of socialist democracy and the rule of law with Chinese characteristics will continue to be enriched, developed and improved, as well. Hu Jintao once pointed out: In upholding Marxism under the new historical conditions, it is important to promptly address new issues emerging in practice and thus provide scientific guidance for practice. We should have a correct understanding of the global development trend and China’s basic condition of being in the primary stage of socialism, find out more about the features of China’s development at the current stage, review the new experience gained in a timely manner by the people led by the Party, and create new theories with the focus on major issues concerning economic and social development, so as to ensure the vitality of scientific theories. Obviously, this basic principle suggested above should be followed in the study of the theory of socialist democracy and the rule of law with Chinese characteristics.

We have such passion to research into the theory of democracy and rule of law, but we also acknowledge that the research in this book is only a prelude, and that its basic theoretical propositions can be refined further, elucidations on the practical progress in the construction of democracy and rule of law can be deepened further, and the logical argumentation of the theory can be more rigorous, as well. In particular, we know that as China’s cause of reform—including the construction of democracy and the rule of law—enters a critical period, a tough moment and deep-waters and as the call of the times for the construction of a socialist country ruled by law in all respects is more vigorous, we should pay more attention to the research on the latest development of the theory of socialist democracy and the rule of law with Chinese characteristics, and pay more attention to put forward new theoretical propositions for the construction of democracy and the rule of law, so as to provide more powerful theoretical explanation and guidance, for a faster development and progress of the construction of democracy and the rule of law. We will unfold this significant theme in this new work.

Chapter One

The Ideological Origins of the Theory of Socialist Democracy and Rule of Law with ChineseCharacteristics

The theories of Marxism-Leninism and Mao Zedong Thought on democracy and the rule of law are the ideological origins of the theory of democracy and rule of law with Chinese characteristics. The theory of democracy and rule of law with Chinese characteristics is the enrichment and development of Marxism-Leninism and Mao Zedong Thought, as well as the enrichment and development of the theory of Marxism-Leninism and Mao Zedong Thought on democracy and the rule of law. To study the theory of socialist democracy and rule of law with Chinese characteristics, we must have an understanding of Marxism-Leninism and Mao Zedong Thought, especially the theories of Marxism-Leninism and Mao Zedong Thought on the state and law, including the theory of democracy and rule of law. Marx and Engels combined the basic kernel of Feuerbachian materialism and the rational kernel of Hegelian dialectics to create dialectical materialism, and used this worldview and methodology to study socio-historical phenomena including the state and law to form historical materialism, and put forward a series of rich and profound scientific views on observing socio-historical phenomena such as the state and law, including democracy and the rule of law. Marx and Engels gave profound analyses on the nature, form and functions of state power and law, on the dictatorship of the proletariat, the relationship between socialist democracy and law, law and the rule of law, etc. In the new historical period, Lenin adhered to and further developed the Marxist theory of the dictatorship of the proletariat and socialist democracy in the light of the practice of the Russian revolution and socialist construction, and analyzed in depth the problem of building a democratic legal system under socialist conditions; under Mao Zedong’s leadership and Marxism-Leninism’s guidance, the first collective leadership of Communist Party with Mao Zedong as the core started from China’s actual conditions of China’s revolution and construction, led the Chinese people of all nationalities through the long-term and arduous struggle of revolution and construction, and achieved the great victory of the revolution and construction through long and hard struggles, formed the Mao Zedong Thought, and established and consolidated the people’s republic of the people’s democratic dictatorship, greatly enriched and developed the Marxism-Leninism, and enriched and developed the scientific theory of Marxism-Leninism on the state and law, including democracy and the rule of law. These theories are the ideological origins of the theory of socialist democracy and rule of law with Chinese characteristics. Marxism-Leninism, Mao Zedong Thought, and the theories of Marxism-Leninism and Mao Zedong Thought on the state and law, including the theory of democracy and rule of law have an extremely broad and rich content, which requires special study, not a task that can be accomplished in this work, so the task of this chapter is mainly to clarify the basic ideas of Marx and Engels on democracy and rule of law in a concise manner, to clarify the main content of Lenin’s thought on democracy and rule of law, to clarify the basic theory of Mao Zedong Thought on democracy and legal system, and to study and clarify Mao Zedong’s and his comrades’ important discussions on democracy and legal system.

Marx’s and Engels’ Thoughts on Democracy and Rule of Law

Theoretical Foundations of Marx’s and Engels’ Thoughts on Democracy and Rule of Law

The theoretical or philosophical basis of Marx and Engels’ thoughts on democracy and rule of law is historical materialism. Historical materialism states: the sum-total of relations of production established at a certain level of productive forces constitutes the economic basis of society and is the core of social existence or the material conditions of life of society. Social existence determines social consciousness, determines the phenomena of the superstructure (a certain social consciousness and the institutions that correspond to it) built on a certain economic base. The economic base reflects the fundamental relations of interests between classes or different social groups. Everything that people struggle for is related to their interests. Therefore, social consciousness and its corresponding institutions (democracy, the rule of law, etc.) cannot transcend but can only be adapted to such relations of interests. In this respect, it is an objective law and the most fundamental thing in the whole theoretical system of Marx and Engels. Just as said by Engels: According to the materialist conception of history, the ultimately determining element in history is the production and reproduction of real life. Other than this neither Marx nor I have ever asserted.1 It is this determination theory of historical materialism that has solved the most fundamental and integral issue in the law of change and development of human society, thus becoming the fundamental point of the scientific theory of democracy and rule of law of Marxism.

In his Speech at Marx’s Funeral of 1883, Engels pointed out: Just as Darwin discovered the law of development or organic nature, so Marx discovered the law of development of human history: the simple fact, hitherto concealed by an overgrowth of ideology, that mankind must first of all eat, drink, have shelter and clothing, before it can pursue politics, science, art, religion, etc.; that therefore the production of the immediate material means, and consequently the degree of economic development attained by a given people or during a given epoch, form the foundation upon which the state institutions, the legal conceptions, art, and even the ideas on religion, of the people concerned have been evolved, and in the light of which they must, therefore, be explained, instead of vice versa, as had hitherto been the case.2 This incisive generalization of historical materialism by Engels is fully consistent with that of Marx himself. In the Preface of A Contribution to the Critique of Political Economy, Marx said: My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel, following the example of English and French thinkers of the eighteenth century, embraces within the term civil society; that the anatomy of this civil society, however, has to be sought in political economy. He further pointed out that the general result at which I arrived... can be briefly formulated as follows: in the social production of their life, men enter into definite relations... relations of production which correspond to a definite stage of development of their material productive forces. The sum-total of these relations of production constitutes the economic structure of society, the real foundation, on which rises a legal and political superstructure and to which correspond definite forms of social consciousness.3 In order to defend the scientific theory of historical materialism, Marx and Engels fought persistently against the determinism of political power (especially monarchical power) and the determinism of will or law of historical idealism. Marx pointed out: One must be destitute of all historical knowledge not to know that it is the sovereigns who in all ages have been subject to economic conditions, but they have never dictated laws to them. Legislation, whether political or civil, never does more than proclaim, express in words, the will of economic relations.4 ...Society is not founded upon the law; this is a legal fiction. On the contrary, the law must be founded upon society... [Code Napoleon] has not created modern bourgeois society... [Bourgeois society] merely finds its legal expression in this Code. As soon as it ceases to fit the social conditions, it becomes simply a bundle of paper.5 Marx and Engels always called the idealistic view of history as legal fiction" and this is precisely the main mistake of all non-Marxist or anti-Marxist thoughts of democracy and rule of law.

On the Nature and Form of the State and Law

According to the Marxist world outlook and methodology, the study and understanding of the state forms of social life and the legal relations between men can neither be understood from itself nor from the so-called general development of human spirit, because they are both important components of the social superstructure, and their nature is determined by the economic basis on which they are built, that is, they are determined by the sum-total of production relations that correspond or suit to a definite stage of development of social productive forces. in social life can be various, such as monarchy, constitutional monarchy, parliamentary republic, presidential republic, authoritarian political system, democratic political system, etc., which are only different state forms (political system); the legal relations between men may arise according to different legal forms, such as the legal form of the civil law system or common law system. But no matter what form the state assumes, whether it is a monarchy or a republic; and regardless of the legal form, whether it is a written law or an unwritten law, to understand their nature depends on what kind of economic basis they are based on. As long as they are built upon the capitalist economy, they must serve the capitalist system, such state is the machine to maintain the rule of the bourgeoisie, such jurisprudence is the will of the bourgeoisie made into a law for all. In their numerous works such as The Critique on Hegel’s Philosophy of Right, The German Ideology, The Poverty of Philosophy, The Communist Manifesto, Ludwig Feuerbach and the End of German Classical Philosophy, Anti-Dühring, The Housing Question, Capital and The Origin of the Family, Private Property and the State, Marx and Engels have profoundly revealed the correctness of this conception of history. Marx and Engels’ The Communist Manifesto, in exposing the nature of the ideology of the bourgeoisie, profoundly pointed out: Your very ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, just as your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economical conditions of existence of your class.6 Although this passage is addressed to bourgeois law, it has universal guiding significance for grasping the essential attributes of various types of law.

With the historical materialist point of view to observe the problem, the essential attributes of the law refers to the social attribute and class attribute of the law, and these two are unified. What the social attribute of the law answers the law of what society, important component of the superstructure of what kind of economic base; what the class attribute of the law answers is what kind of ruling class (the class in control of state power) is the embodiment of the will. As the superstructure of a definite economic base, the law must reflect the will of the ruling class to adapt to this economic base. Proceeding from the vital interests, every class or social group hopes to upgrade its will into law and make the whole society comply with it. However, in order to achieve this, any class or social group must obtain political domination, because law is always the embodiment of the will of the ruling class, that is, the class that wins and controls the state power. In a fierce game of interests, only the victorious class or social group can hold the power of the state and become the ruling class, and then can make its will into law. It can be seen that the view that law is the will of the people or the will of society as a whole, which bourgeois theorists are accustomed to advocate, is a deceitful sermon that conceals the social and class nature of law.

The will of the ruling class or social group implied in the law should be the will of the ruling class or social group as a whole, that is, their common will, not the will of individual persons or organizations among them, nor the simple addition of the will of each member or organization among them. Marx has repeatedly emphasized: The ruling class seeks to enforce their own will in the form of law, and at the same time to make it independent of the personal arbitrariness of each individual among them, does not depend on their idealistic will. Their personal rule must at the same time assume the form of average rule.7 Law is the expression of common social interests and needs generated by a certain mode of material production, rather than the arbitrary decision or idealistic will of a single individual.8 It goes without saying that the law compels the ruled class to strictly abide by it, but the law also requires members of the ruling class or social groups to make a certain self-denial. of course, this self-denial is in exceptional cases, while the self-affirmation of interests is in general.9 In other words, the law can only embody that part of the will of the members of the ruling class which is consistent with each other, that is, their common will, to the exclusion of the will of any individual organization or person within it which is contrary to the common will. If this were not the case, the law would not serve the purpose of maintaining the political rule and economic needs of the ruling class or social group as a whole. of course, the way of making laws varies from country to country, and even varies considerably. In democracies, laws are made by the whole of the ruling class or by representatives of the majority of their group; in aristocracies, by a minority of their group; in autocracies, by the dictator alone. However, in either case, the law made must conform to the common will of the ruling class and represent the common interests of the ruling class, otherwise, the law, or even the minority or individual who made it, must be abandoned by the ruling class or social group sooner or later.

Marx and Engels pointed out: Since the State is the form in which the individuals of a ruling class assert their common interests, and in which the whole civil society of an epoch is epitomized, it follows that the State mediates in the formation of all common institutions and that the institutions receive a political form.10 The ruling class, "leaving aside the fact that their power must assume the form of the state have to give their will, which is determined by these definite conditions, a universal expression as the will of the state, as law.11 The Marxist assertion that law is the general expression of the will of the state is very important: First of all, it shows that the ruling class can obtain the general form that everyone must abide by only when it turns its common will into the general expression of the will of the state, that is, it becomes a law (written or unwritten) through the formulation or approval of the state and gives it the guarantee of national coercive force. Secondly, it shows that the will of the ruling class or group may also be manifested as customs, ethics and morality, religious beliefs etc. that are recognized and guaranteed by the coercive force of the state. But those positions and norms that have not been formulated or recognized by the power organs and have not yet acquired legal form do not yet belong to the general expression of the will of the state, that is, they do not yet belong to the actual (empirical) category of law. Thirdly, in addition to the general manifestations of the will of the state, there are also individual manifestations, such as individual decisions, declarations, appointments of state organs, etc., which, although they are important elements of legal regulation, are not yet law, but are activities of applying law.

The will of the state is actually the will of the class or group in the dominant position in the society, and the content of this will is ultimately determined by the material conditions of life in that society. Although the ruling class has the power to formulate laws, the content of the laws is not arbitrary. The material conditions of life of the society include the geography, the population and the socio-economic base (the sum-total of economic relations) connected with both, and it is these factors that determine the content of the will of the state embodied in the laws.

These issues have been systematically studied in Marxist political science and jurisprudence, and will not be repeated here.

On the Function of the State Power and Law

Marxism has revealed the nature and forms of the state power and law, and pointed out that the state power and law cannot be understood from the state power and law itself, nor can they be understood from the general development of the human spirit; but only by looking at the economic basis on which they are built as a superstructure, their nature can be understood. The state power and law based on the capitalist economy, in its essence, must be a means to serve capitalism and a machine and tool to realize bourgeois rule. Nevertheless, the classic writers of Marxism have pointed out also pointed out that any state power and legal system, in order to perform its function of class rule, have to perform a certain social public function. When Marx spoke of the exploitative class state, he once pointed out that supervision and all-round interference by the government involves both the performance of common activities arising from the nature of all communities, and the specific functions arising from the antithesis between the government and the mass of the people,12 that is, the function of achieving political rule and safeguarding the fundamental interests of the ruling class.

The social public function of the state power and law is the function of performing common activities arising from the nature of all communities, that is, that is, the function of safeguarding the common interests of all inhabitants of society proceeding from the fundamental interests of the ruling class. For example, in ancient Persia and India, the state enacted many laws for the operation and management of national river irrigation, its channels and sluices. In modern times, in order to ensure the smooth flow of traffic and prevent traffic accidents, it is necessary to enact traffic regulations; in order to prevent environmental pollution and ensure the rational development and utilization of resources, it is necessary to enact environmental protection regulations and resource protection regulations. Obviously, these activities of the state power and the enactment and implementation of these laws and regulations not only benefit the ruling class, but also objectively benefit society as a whole.

The class rule function (political function) and social function (public function) performed by the state power and law are dialectically unified, therefore, compared with the legal norms performing class rule function, the legal norms performing social public function do have their own characteristics, for example, most of this kind of norms belong to social technical norms, which adjust the relationship between man and nature by adjusting the relationship between man and man (i.e. social relations). Such norms do not have a class character in themselves. But, when observing the social and class nature of legal norms, the observation must be placed in the whole legal system; more importantly, they must also be observed in connection with the entire legal system and the economic base on which the entire system is built. This part of the norms cannot be seen in isolation, it is closely associated with the norms that perform the class rule function of law, and both this part of the norms and the norms that perform the class rule function serve its economic base. This is not only reflected in that both are subject to the fundamental purpose of establishing and maintaining social relations and social order conducive to the ruling class or social group, but also in that the social public function of law and the class rule function of law restrict each other. Just as Engels pointed out that the exercise of a social function was everywhere the basis of political supremacy; and further that political supremacy has existed for any length of time only when it discharged its social functions.13

On the Dictatorship of the Proletariat and Socialist Democracy

The dictatorship of the proletariat is the highest expression of the historical status and mission of the proletariat, because only the dictatorship of the proletariat can completely eliminate classes, realize the liberation of human beings, and enter the communist world of great unity.

From the time Marx and Engels transformed themselves from radical democrats to communists, their thought of the dictatorship of the proletariat was already in the making. The German Ideology, co-written by Marx and Engels, points out that the proletariat must conquer the political power and establish its rule. In The Communist Manifesto, it is pointed out that the first step in the revolution by the working class is to raise the proletariat to the position of ruling class in order to win the battle of democracy. The struggle for democracy means the struggle for power, because democracy is the form of organization of state power.14 Marx officially used the term proletarian dictatorship for the first time in his book The Class Struggles in France, 1848 to 1850 and pointed out that socialism is the class dictatorship of the proletariat, and its basic slogan is: Down with the bourgeoisie! Dictatorship of the Working Class!15 Most noteworthy is the reference in Marx’s letter to Weydemeyer of March 5, 1852: and now as to myself, no credit is due to me for discovering the existence of classes in modern society or the struggle between them. Long before me bourgeois historians had described the historical development of this class struggle and bourgeois economists, the economic economy of the classes. What I did that was new was to prove: (1) that the existence of classes is only bound up with particular historical phases in the development of production, (2) that the class struggle necessarily leads to the dictatorship of the proletariat, (3) that this dictatorship itself only constitutes the transition to the abolition of all classes and to a classless society...16 Here Marx gives a brief account of the idea of the dictatorship of the proletariat, which he shows to be the main point of the Marxist theoretical system. The watershed between Marxism and all non-Marxism lies in the recognition of class and class struggle, but also in the recognition of the dictatorship of the proletariat. In 1875, Marx further developed the thought of the dictatorship of the proletariat in his critique of Lassalleism, especially the draft of the Gotha Programme. He pointed out that [b]etween capitalist and communist society there lies the period of the revolutionary transformation of the one into the other. Corresponding to this is also a political transition period in which the state can be nothing but the revolutionary dictatorship of the proletariat.17 At the same time, Marx also pointed out that under the dictatorship of the proletariat there still must be laws to safeguard the relationship of rights and duties to each according to his labor. After the death of Marx, Engels continued to adhere to and develop the thought of the dictatorship of the proletariat and made unremitting struggles against the opportunism of the Second International. He pointed out: that the dictatorship of the proletariat was the same as that of the Paris Commune, which was headed by the proletariat and the broad masses of the people. He said eloquently: of late, the Social Democratic Philistine has once more been filled with wholesome terror at the words ‘Dictatorship of the Proletariat’. Well and good, gentlemen, do you want to know what this dictatorship looks like? Look at the Paris Commune. That was the Dictatorship of the Proletariat.18

In the preface to the 1872 German edition of The Communist Manifesto, Engels summed up the experience of the French revolution and especially the Paris Commune by stating: One thing especially was proved by the Commune, viz., that ‘the working class cannot simply lay hold of the ready-made state machinery, and wield it for its own purposes’.19 As Marx pointed out in summing up the experience of the Paris Commune, ... I say that the next attempt of the French revolution will be no longer, as before, to transfer the bureaucratic-military machine from one hand to another, but to smash it, and this is essential for every real people’s revolution on the Continent.20 Here, Marx also discussed the main reasons for the need to smash the old bureaucratic-military machine. It is important to note that the theory of smashing the old bureaucratic-military machine includes, of course, the position of abolishing the old bourgeois legal system. Marx and Engels categorically criticized the position that the proletariat needs to maintain the old legal basis, stating: ... You cannot make the old laws the foundation of the new social development, any more than these old laws created the old social conditions.21 They were engendered by the old conditions of society and must perish with them. ... [t]o maintain the old laws in face of the new needs and demands of social development is essentially the same as hypocritically upholding the out-of-date particular interests of a minority in face of the up-to-date interests of the community.22

The new peak of Marx and Engels’ study of the democracy for the proletariat and the broad masses of the people was the summarization of the experience of the Paris Commune in 1871. Marx believed: The Commune supplied the republic with the basis of really democratic institutions, and the Commune itself was the prototype of a new democratic republic. The basic characteristics of this democracy are: (1) From the view of the state system. First of all, the proletariat played the leading role in the commune regime, because the vast majority of the members of the Commune were workers or publicly known representatives of the workers. Secondly, the commune was a form of the political liberation of the proletariat. This revolution was not a revolution of the form of state power, but a revolution against the state itself, of this supernaturalist abortion of society. This revolution was a movement for the resumption by the people for the people of its own social life. In order to ensure that the people is the master of the country and in order to prevent that this people’s servant state to degenerate again into the master of the people, the Commune adopted two measures: all offices shall be held by persons elected by universal suffrage and may be replaced at any time; all public servants receive the wages of ordinary skilled workers. Finally, the Commune regime gained the corresponding economic content, so that it had a definite economic basis and did not fall into a scam. (2) From the view of the political system. First of all, the Commune was to be a working, not a parliamentary body, executive and legislative at the same time. It is necessary to point out that Marx’s summary did not in any way deny the division of labor in the functions of the state, but exposes the shortcomings of the bourgeois parliamentary system. On the contrary, he showed that it was precisely the Commune-style democracy that really realized universal suffrage and representative system. Secondly, in the programme of the Commune, the form of the state structure would take the form of a unitary system of national unity based on a high degree of local autonomy. In short, the real secret of the Commune was that it was essentially a working class government, the product of the struggle of the producing against the appropriating class, the political form at last discovered under which to work out the economical emancipation of labor.23 It can be said that the Paris Commune provided the first living image of socialist democracy in all its glory.

When Engels criticized the Draft Social-Democratic Program of 1891, he categorically stated: our party and the working class can only come to power under the form of a democratic republic. This is even the specific form for the dictatorship of the proletariat, as the Great French Revolution has already shown.24

On the Value Goal of Law

The value of a thing (object) is the positive meaning of a thing (object) to meet the needs of a subject. It is to understand the value of a thing (object) to human beings and his organization (subject) from the relationship between the thing (object) and human beings and his organization (subject). The value of law, such a thing, is determined not only by the nature of the law, but also by the interests and needs of different human beings and their organizations at different times and places and conditions. Interests are the satisfaction of the needs and the measures taken to satisfy these needs, and interests are the basis of value. Since the needs of human beings and their organization are objective, the interests and value of things are also objective to human beings and do not depend on the subjective consciousness of human beings. It is necessary to distinguish between interests and values and the interest outlooks and value outlooks. Interests and values are objective, while interest outlooks and value outlooks are subjective. But the interests and values have the characteristics of subjectivity, multidimensionality and variability, so the value of the law has not only objectivity, but also subjectivity, multidimensionality and variability, namely: the subject is different, the value of the law is different (subjectivity); the needs of the subject are diverse, the value of the law is also diverse (multi-dimensionality); the needs of the same subject in different times, places and conditions are different, the value of law is also different and variable (variability). As a tool for satisfying the needs of people and their organizations, the law has an instrumental value, which can also be understood as the value of the law itself. But what is important is the value of the law in meeting the needs of human beings and their organizations, or the value mediated by the law (some authors call it the purposive value of the law), which is diverse, providing not only various material materials needed for human life, such as water, air and various materials for clothing, food, shelter and transportation, but also the environment and conditions for obtaining these materials, such values as the social order constituted by certain discipline and freedom, the coordination of certain interests (certain fairness and justice), the use of state power but also to prevent the abuse of state power, the need for both stable order and continuous development, etc. Among these values, Marx and Engels paid more attention to the issues of freedom and discipline, rights and duties, fairness (justice) and efficiency.

Freedom and discipline and the law

The the law of freedom believed by Marx and Engels in the early days was the so-called law of rational freedom. According to this view, "Freedom is so much the essence of man that even its opponents implement it while combating its reality... No man combats freedom; at most he combats the freedom of others. Hence every kind of freedom has always existed, only at one time as a special privilege, at another as a universal right.25 Lack of freedom is the real mortal danger for mankind.26 It was in the pursuit of the universal rights of the people and against the privileges of the few that Marx famously put forward the view that a statute-book is a people’s bible of freedom.27 It is obvious that this radical democratic view of freedom lacks a realistic and materialistic scientific basis.

After embarking the path of historical materialism, Marx and Engels’ view of freedom underwent a qualitative leap.

1. Absolute freedom does not exist. Philosophically speaking, freedom is the recognition of objective necessity (laws) and the transformation of the objective world. Engels pointed out: Freedom does not consist in any dream of independence from natural laws, but in the knowledge of these laws, and in the possibility this gives of systematically making them work towards definite ends... Freedom of the will therefore means nothing but the capacity to make decisions with knowledge of the subject.28

2. The freedom of human action and discipline of are dialectically united, as are the legal manifestations of this freedom and discipline – rights and duties in law. In terms of social development, people are free within the limits determined and permitted by the existing productive forces. The freedom of human action is not absolute. The freedom of the individual is linked to the freedom of others, and in order to be free, a person must observe a certain discipline that does not interfere with the freedom of others. Thus, the law is never a manifestation of the legislator’s reason or free will, but is limited by objective laws or the material conditions of social life. The legislator determines the freedom of action of a certain subject as a right, and a certain action of the relevant subject as a duty. The freedom of human action (external action) is limited by various conditions, and in societies where state power exists, freedom is also limited by the law as the will of the state. As Montesquieu said: Liberty consists principally in not being forced to do a thing that the law does not order, and one is in this state only because one is governed by civil laws; therefore we are free because we live under civil conditions. Liberty is the right to do whatever the laws permit.29 If one acts against the law, not only there is no freedom, but also one is punished by the law. Therefore, any law is a restriction, confirmation and protection of people’s freedom of action under certain historical conditions.

3. The so-called freedom of the will and the responsibility for abuse of rights and non-fulfillment of obligations are also dialectically united. Before committing a certain act, each person is often faced with a choice of different options. Just because an action plan is freely chosen by him, it means that he chooses a corresponding responsibility for himself, i.e., he is obliged to be responsible for his act. This ability to choose one’s own act is called capacity to act and legal capacity to commit tortious acts. Without this legal capacity to commit tortious acts, the law should not make him accountable; and for people with limited legal capacity to commit tortious acts, the law can only require him to bear part of the legal liability.

All these show that the law is necessarily the freedom and discipline of action that people can have under certain material conditions of life, and the legal manifestation of this freedom and discipline of action – the unity of rights and duties.

Fairness and justice and the law

Although such words as justice, equity, fairness, righteousness, and uprightness are words that express the same basic meaning, although they have their own focus, and they all refer to a certain correspondence, such as the correspondence between labor and remuneration, the correspondence between performance and reward, the correspondence between rights and duties, and the correspondence between crime and punishment, that is, the ideal state that people pursue, such as good is rewarded with good, evil is rewarded with evil, and an eye for an eye, a tooth for a tooth. The most abstract definition of justice is to give everyone what he or she deserves, but what does everyone deserve? What is the ideal state of people? In different periods, different people and different schools have different answers. American philosopher of law Edgar Bodenheimer once said: Justice has a Protean face, capable of change, readily assuming different shapes, and endowed with highly variable features.30 In this passage Bodenheimer acknowledges that there is no eternal justice, that justice changes with the times, and that the justice pursued by different people is very different. Indeed, fairness and justice are a kind of judgment and a kind of value, but such judgment and value must have a certain entity to be judged, that is, a certain contradiction of interests and relations of interests, and the law is the criterion for people to judge the contradiction of interests and relations of interests established through the formulation or recognition of the state power under certain historical conditions. It is the freedom of action and discipline that people can have under certain historical conditions, and their legal manifestation – rights and duties in law. Therefore, the word law and the words equivalent to Chinese law in many national languages have the meanings of peaceful, just, straight and right. of course, law is not equal to fairness and justice. The scope of fairness and justice is much broader than the law in jurisprudence. The law in jurisprudence is the fairness and justice in the form of laws, which is recognized and protected by the state power.

For the first time in human history, the classic writers of Marxism scientifically revealed the material basis for judging the justice of human thinking, action or social institutions. When criticizing the eternal justice of Proudhon, Engels pointed out: this justice is never anything but the ideologized, glorified expression of the existing economic relations, at times from the conservative side, at times from the idealized or sanctified revolutionary side.31 Marx also pointed out: The justice of the transactions between agents of production rests on the fact that these arise as natural consequences out of the production relationships. The juristic form of the transaction—the contract, its form is unjust whenever it corresponds, is appropriate, to the mode of production. It is unjust whenever it contradicts that mode. Slavery on the basis of capitalist production is unjust; likewise fraud in the quality of commodities.32 Marxism is the world outlook and methodology of the working class and the broad masses of the people. The interests of the working class and the broad masses of the people are in line with the requirements of the progress of human society. Marxists believe that every action that is beneficial to the people and every thing beneficial to the progress of human society is just. The economic relations within each and every society are first manifested as an interest relationship.

When certain relations of production are no longer suitable for the development of the productive forces, it will inevitably lead to the hardship of the masses; when certain relations of production are seriously unsuitable for the development of productive forces, the lives of the broad masses of the people will inevitably fall into serious difficulties, hunger and cold, and displacement. Then, the concept of justice that most people in society once agreed will be in crisis, and then, it is time for the so-called rites collapse and happiness break down.

Engels has profoundly pointed out: So long as a mode of production still describes an ascending curve of development, it is enthusiastically welcomed even by those who come off worst from its corresponding mode of distribution. Only when the mode of production in question has already described a good part of its descending curve, when it has half outlived its day, when the conditions of its existence have to a large extent disappeared, and its successor is already knocking at the door—it is only at this stage that the constantly increasing inequality of distribution appears as unjust, it is only then that appeal is made from the facts which have had their day to so-called eternal justice.33

From Engels’ argument, we can draw a new understanding: for a long time we have tended to pay more attention to the irrationality of the system of exploitation, while ignoring its rationality in a certain historical period. In fact, any mode of production, if it still describes an ascending curve, even if it allows exploitation, will be accepted by the majority of society and even considered just. Only those modes of production that do not provide more benefits for the people and do not solve the livelihood problems of the majority are considered unjust and should be abandoned.

Equality and the law

Marx and Engels pointed out: from the ancient primitive concept of equality to the formation of the modern concept of equality thousands of years had to pass and did pass... The idea of equality, both in its bourgeois and in its proletarian form, is therefore itself a historical product, the creation of which required definite historical conditions that in turn themselves presuppose a long previous history."34  What is decisive for such historical conditions is the economic relations.

In slave and feudal societies, economic relations were characterized by personal dependence, and people were categorized by drawers, so that, conceptually, inequality was more justified than equality. Engels rhetorically asked: Was there ever in antiquity between slaves and masters, or in the Middle Ages between serfs and barons, any talk about an equal right in the urge for bliss?35 The law corresponding to this idea must be the privilege law and animal’s law. The laws nakedly recognized and defined the property, political and legal privileges of some people, and nakedly defined the inequality between people (not only between the ruling class and the ruled class, but also within the members of the ruling class).

With the development of capitalist economic relations in society, the question of equality against feudal privileges was raised and caused a great clamor. The capitalist market economy objectively requires that capital compete freely with each other on an equal footing, that it enter into labor contracts with so-called free workers on an equal footing, and that it extract surplus value on an equal footing, i.e., that it realize equal exchange as owners of commodities. Each subject gives and receives the same thing, and through exchange they prove that they are equal in value. Therefore, Marx said: Capital is by nature a Leveller, since it demands in every sphere of production equality in the conditions of the exploitation of labor as its inborn human right.36... Correspondingly, as pure ideas of equality and freedom are merely idealized expressions of this basis; as developed in juridical, political and social relations, they are merely this basis to a higher power.37 This is why equality before the law was naturally elevated to a constitutional principle, while political privileges were abolished.

However, the political and legal equality is entirely a formal equality, which conceals not only the game between capital and capital, but also the de facto economic and social inequality between capital and workers. The original contract of equality becomes the legitimate basis for the brutal exploitation of the workers. Therefore, the primary task of the proletarian party is to help the oppressed and exploited masses of the people to get rid of the capitalist outlook on equality and to establish the Marxist outlook on equality. However, it must also make good use of this idea of equality and the principle of legal equality to carry out the struggle against the bourgeoisie. Engels, referring to Rousseau’s theory of equality, pointed out that the idea of equality played especially thanks to Rousseau a theoretical, and during and since the great revolution a practical political role, and even today still plays an important agitational role in the socialist movement of almost every country.38 What, then, is the fundamental content of the proletarian demand for equality in capitalist society? Engels pointed out: …the real content of the proletarian demand for equality is the demand for the abolition of classes. Any demand for equality which goes beyond that, of necessity passes into absurdity.39 For only with the elimination of classes can there be universal and true equality.

The socialist society (note: here, Marx refers to the socialist society of the first stage of communism, that is, the socialist society in which private ownership of the means of production has been completely eliminated) realizes the equality of the masses of the population in terms of the principle of the public ownership of the means of production and the distribution to each according to work, and has become the master of the state in terms of politics. However, the socialist society is not yet a realm of equality. Due to the limitations of the level of development of the productive forces and the corresponding level of social consciousness, it is impossible for people to work for society without any law in the short term. On the contrary, there is still a bourgeois right, which is concentrated in the field of distribution of social products. Because the equality in the distribution to each according to work means that a given amount of labor in one form is exchanged for an equal amount of labor in another form. The equality consists in the fact that measurement is made with an equal standard, labor.40 But the situation of each individual is different, and therefore this equal right is an unequal right for unequal labor.41 For Marxists, this equality in form (in principle) but de facto inequality is, of course, a defect". Marx said: to avoid all these defects, right, instead of being equal would have to be unequal.42 That is to say, the principle of distribution to each according to work should be replaced by the principle of distribution from each according to his ability and to each according his needs.

Rights and duties and the law

In the early human society, due to the backward productivity and extremely poor wealth, people produced and lived together. There was no difference between people, what they took and what they did not have much difference, and there was no concept of rights and obligations. This situation is proved by Indians who are still in the early stage of primitive life. Engels pointed out: Within the tribe there is as yet no difference between rights and duties; the question whether participation in public affairs, in blood revenge or atonement, is a right or a duty, does not exist for the Indian; it would seem to him just as absurd as the question whether it was a right or a duty to sleep, eat, or hunt. A division of the tribe or of the gens