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On the Value of Legislation and its Selections
Abstract
    
    Since the Third Plenary Session of the 11th Central Committee, the working of legislation in China has made great achievement of world attention. It is necessary for us to conduct research on how to acknowledge, understand and evaluate the work of legislation in China. The value of legislation is usually refereed to the correlation between the subject's needs and the object (regulated by laws) of legislation, with moral principles and interests to which the subject of legislation expects to achieve through legislation as its form of expression. What legislators as representatives of the people expect to achieve is not only the lofty moral norm of legislation -- justice, equality and so on, but also the external form of legislation interests. Such a integration of justice and interests forms two undivided aspects of modern legislation value. Justice is the intrinsic value of legislation and it determines the essential attribute of legislation. When justice as the intrinsic value of legislation is used to guide and judge a law, it has relative value attribute. What legislators pursue can only be relative fairness or justice. Interests are the extrinsic value of legislation. The emphasis of the value of legislation falls on the unity of interests and justice (fairness) to handle the contradiction of all kinds interests with justice principle. Since there are various interests in social relations, in order to realize the unity of the justice and interests of value selection of legislation, we must meet the following "no-action" criterion:
    1. Selections against the expected value of legislation should not be made.
    2. Selections against most people's will should not be made.
    3. Selections harmful to the authority of the rule of law should not be made.
    4. Selections against human dignity and basic human rights should not be made.
    Also, we must follow four principles:
    1. Freedom principle to ensure that people's will be expressed completely and freely.
    2. Principle of taking different interests into reasonable account.
    3. Fairness principle to maintain the justice in form or the fairness of result.
    4. Necessity principle with different treatment.
    
    I. The Raising of the Question
    What is the value of legislation? In other word, what do we think from the angle of legislators the intrinsic value of "laws" which are still in conceptions and drafting is? What are the expected purpose and final value and what is its interrelation with other laws in the whole legal system? Especially what is the intrinsic value and final value of constitutional norm which is the basis for the rationality of legislation. The values in question have attracted us to think carefully. It is obvious that since the Third Plenary Session of the 11th Central Committee, the working of legislation in China has made great achievement of world-interest. Some departments concerned declared in 1987 that the socialist legal system based on the constitution has been basically established. In recent years, in order to meet the needs of establishing the socialist market economic system, the steps of legislation has been speeded up, each year saw many new laws and regulations were passed. It deserves careful pondering how to realize, understand and examine the working of legislation in China from the angle of values of legislation.
    Nowadays, some scholars of law maintain that legislation should be evaluated from three aspects: value, structure and actual effect. The value is the soul and sprit of legislation implying in laws; the structure is the existential form of legislation exposed on the surface of laws; the actual effect is the direct result of legislation upon the operation of laws. This thinking is not unreasonable but not perfect. The structure of legislation also has value factor, it can at least become the carrier of value of legislation to certain extent. Meanwhile, mostly the actual effect can positively examine the value of legislation from. the angle of feedback. Although the value of legislation mainly implies in the text of laws, it can be embodied by the structure and actual effect of laws. The value of legislation does not exist independently.
    In China, some legislation mostly involves in the value of legislation. For instance, certain local people's congress passed a regulation on compulsory blood donation. We will not ask whether the making of such a regulation is in light with the constitution, whether the local congress has the power to set this obligation for the people, that is to say whatever the legality of the regulation is, but we think it is worth of deliberating in terms of the value basis (major part of the rationality) of the regulation. The first article of the regulation stipulates the purpose and reasons for compulsory blood donation: to guarantee the medical use of blood and secure people's health...to promote the spiritual civilization of the country...The core of the regulation is to secure the citizens' health. There is nothing to be blamed. But the question is, health is everybody's basic right, what is the reason to legally enforce some people to donate their blood just for the others health? What is its legality? If we can by law enforce some people to compulsorily donate blood just for the others healthy life, does it mean that we can by law enforce some people to have their organs transplanted, on the premise of no danger to their life, to save other people's life in dire danger? Or we can enforce them to donate their marrow to heal the wounded and rescue the dying? Since the most valuable part of our life can be sacrificed for the purpose of obligation, every merely worldly possessions can be assigned as obligations at will. In my opinion, laws should set obligations in accordance with the following basis. The obligations among family members should be based on the ties of blood or certain special legal relations. The civic obligations to the nation should be based on the necessity of the nation's existence with the acknowledgment and protection of people's rights as the precondition. The basis of the obligations of some people (through law, the media of political will) to the others can not find its value basis.
    
    II. What is the Value of Legislation?
    The prerequisite of this topic is acknowledging the value of legislation. But there are different opinions among law thinkers in western countries on whether we can analyze or judge laws or legislation. The founder of the analytical school of law, John Austin maintains that the judgment on laws is only the analysis on the structure of law norms, especially the logic analysis, there is no need to make value judgment on the norms to see if they are good or bad. Austin said, "The existence of law is one thing while its performance is another. "[1] But Austin thought the guiding role of principles of utility to the legislation should be carefully considered. The legislators have made necessary consideration and distributions of the role of utility while drafting laws, the researchers on laws just need to study "what the law is" but not "what the law should be". The pure law created by Hans Kelsen emphasizes that we just need to conduct considerable research on the norms of laws by excluding any factors of value judgment, just to logically infer and judge the conceptions of laws but not by considering the "should" factors of laws. L. A. Herbert Hart, by applying the logic positivist philosophy, maintained that we should study "the law as it actually is", he in general did not maintain to make moral judgment on the value of law. He strongly opposed the ethics of law. But he acknowledged that the "minimum natural law" is inseparably connected with the practical law. In the light of the favorable opinion, these scholars oppose to make analysis on the value of law and they reserve their attitudes towards "value of legislation" as well.
    Many scholars acknowledge the value of laws and maintain that it should be analyzed and criticized in the light of value of legislation. Some scholars such as Aristotle of Ancient Greece and Rawls of the modern time all acknowledged that one measure of value is the basis for legislation and law is just the concrete incarnation of justice by the form of legislation, although they had slightly different interpretation to the "justice". Other scholars who persisted in natural laws considered ration, justice or equality as the intrinsic value of laws and legislation was just the concrete activities of those principles of value by following and recurring them. To apply the values in the category of moral philosophy to evaluate legislation and laws is the principal character of supporting the theory of value of legislation, because the recognition or rejection of the value of act in the process of legislation as well as the value orientation to the social relations have shown people's demand to the social moral concepts and value orientation. The utilitarianism maintaining interests as its intrinsic value of legislation, in essence, asks and judges the activities of legislation by focusing on the interests need as the key value measures, with the acknowledgment of legislation to "maximum interests of the most people" as its value orientation.
    The suggestion of value justice. and value interests is the negation of negation to the value of legislation. In fact, the damage to the human society caused by the Fascist when they used the metaphysic opinion "bad law is also law" is obvious to all. The legislation that only emphasizes on its legality but not the rationalization and scientificalness of selection of value of legislation also hides certain dangers to negate the fine values of human being. For instance, some nations carry out policies against human rights by legislation, or legalize the unfair property distribution by legislation.
    Such being the case, what is the value of legislation? In my opinion, the value of legislation usually is not the role of legislation or the utility of legislation, but correlation between the subject's needs and the object (which laws regulate) of legislation, with moral principles and interests to which the subject of legislation expects to achieve through legislation as its form of expression. The subject of legislation is, in democratic political system, its people within its scope of legislation, especially their representatives of legislation. What legislators as representatives of the people expect to achieve is not only the lofty moral norm of legislation -- justice, equality and so on, but also the external form of legislation interests. Such a integration of justice and interests forms two undivided aspects of modern legislation value.
    In the opinion of some western scholars, "fairness" is usually used to interpret "justice", but the word with the most similar meaning in general sense to "justice" is "the deserved award and penalty". "If somebody gives another person something that he or she should get or have, the conduct of the former rendered to the latter is just. "[2] The understanding and acknowledgment to the just is usually shown by the "should" evaluation. Whether it is "should" is judged by the moral system formed in the cultural tradition of a society. Aristotle and his followers emphasized "justice of distribution", namely the social interests and social burden should be reasonably distributed. Embodying in the form of guidance for legislation, we should keep the rights and obligations as well as power and duties in a reasonable status. Rawls maintained in his A Theory of Justice that all social basic values -- the basis of freedom, opportunity, income, property and dignity -- should be equally distributed, unless the unequal distribution of one or all values conforms with everybody's interests. Based on such a thinking on justice, he put forward two principles: the first one is equality and freedom principle and the second one is difference principle and just and equal opportunity principle. It is not difficult to understand the first principle. The difference principle means that the justice of distribution should "conforms with the maximized interests of beneficial minority". Justice can be realized by all reasonable distribution of all systems including legislation. Value distribution depends on the realization of justice while justice's external form is fair interests -- various interests in tangible or intangible forms.
    It is the question to be further discussed whether the interests exist as the value of legislation. Nature school of law maintains that rationality, fairness and justice are the contents of the value of legislation, while the interests are not necessarily part of the system of the value of legislation. But some scholars emphasized the guiding function of interests as the value in legislation. Roscoe Pound believed that laws cannot create interests, but after the laws find interests and identify its scope, laws stipulate some means to protect these interests (individual interests, public interests and social interests).[3] Utilitarianism school of law praise highly the value connotation of interests by covering the value of legislation in the value category with the interests as its core.
    Marxism thought law is the reflection of certain economic relation, while "the economic relation of every society is firstly reflected in the form of interests", [4]" no matter it is political legislation or civic legislation, it just indicates and records the demand of economic relation. "[5] In certain sense, the economic relation can be summarized as interests relation. Such an interests relation obviously effects, restricts or promotes the judgment and selection of the value of legislation, thus becomes the motive to make the legislators have wish to make legislation, and the value objective to guide the legislators to carry out the action of legislation.
    But it is incomplete to consider the interests as the only value of legislation. Because if we go into detail, we can find that interests are composed of various and even controversial interests. If we want to seek balance among these interests through legislation, we must introduce fair value criterion to use justice or fairness to identify the category of various interests to make the distribution of interests acceptable to different parties concerned. Meanwhile, if we just pay attention to the interests value of legislation, it is quite possible for us to switch to the utilitarianism and the interests value of legislation will become unbearably favorable. An example is that the bias to the private property through legislation has resulted in the polarization of "the poor becomes even poorer and the rich becomes even richer". The phenomena of unfair distribution and polarization also exists in China. To analyze from the angle of legislation, although the favorable policy " to let some people be better off first" emphasizes to get rich by working according to law, if the law that it obeys is unfair, it is possible for the legislation to result in such an unfair phenomena. So "getting rich according to law" can not completely guarantee fair distribution. Only those legislation which meet the need of fairness value can properly distribute the interests value and thus guarantee that "getting rich by working according to law" can have more concrete rationality and legality with real meaning.
    
    III. The Unity of Justice and Interests of the Legislation Value
    The value of legislation consists of justice and interests. Justice is the intrinsic value of legislation and it determines the essential attribute of legislation. On one hand, justice is the reflection of moral opinions and principles in the domain of law under certain social conditions, so it is impossible for it not to bear the economic, social and cultural mark of that society and to certain extent bear the class character. On the other hand, justice is the lofty value which mankind pursue, as well as the virtue of the human society. It is the inevitable needs of human natural instincts in the human community to promote justice and castigate the evil, so the justice in legislation has certain objective and common characters beyond the economic, political, social and cultural conditions. So long as the legislation complies with justice, it must meet the value needs in terms of fairness, justice, equality, freedom and order.
    Meanwhile, when justice as the intrinsic value of legislation is used to guide and judge a law, it has relative value attribute. This is because: first, people' s knowledge to fairness (justice) is relative, maybe most people think the legislation is fair but others don't think so. Vice versa. Second, because of the contradictory relationship of interests, legislators can be fair in form but in fact can not guarantee they are completely fair when applying fairness principles. Third, it is not necessarily true that fair prerequisite leads to fair result but it is always true that fair result is caused by the fair prerequisite. Legislation can only use remedial means to narrow the gap between them but can not become complete in both aspects. Fourth, different personality and needs have different even entirely different cognition to the same result. So the justice in the form of fairness can only gradually approach the real justice but not possibly reach the complete justice. What legislators pursue can only be relative fairness or justice.
    Compared to the intrinsic and abstract characters of justice, interests is relatively concrete. It is the extrinsic value of legislation. Interests exit behind the social conducts and relations acknowledged, protected or restricted by legislation. Different interests reflect different class relation, social relation and human relation. The function of legislation is to control or coordinate different kind relations by adjusting different interests to normalize these relations to the coordinate which legislators expect. Of course, the value adjustment to the interests relations by legislators has something to do with their likes and dislikes, but if legislators don't want to bring about their own destruction, they must not arbitrarily and excessively distort the balance of interests. They must follow justice principle and find out acceptable equilibrium point among all kinds interests to maintain the reasonable integration of interests.
    Polarization of interests is the established fact of current economic reform in China. The adjustment to different interests by the reform is leading the society to the new development with vigor and vitality. The activation of interests cell has stimulated the enthusiasm and creativity of the interests subject and has them plunge into the construction cause of modernization with immense zeal. But we must notice that the reform provides us with equal opportunity with unequal prerequisite: the order of fair competition is gradually realized in the process of unequal disorder in terms of power-money deal, abuse of official influence in business and illegal speculation as well as favorable policies. As a result, when the reform activates the interests cell, it also worsens every contradictions between: the central and local governments, developed and underdeveloped regions, public and individual, individual and state, collective and state, long-term interests and short-term interests, mass interests and partial interests, majority interests and minority interests, and so on, among which some contradictions of interests need to be adjusted and solved through legislation. But, since the legislation in China is lack of necessary value connotation and frame model for the value of legislation, it has not yet taken on the historical mission that the social development requires. Different change not tallying with the value requirement has taken place in the actual application of the value of legislation. For instance, some legislation should take the protection of human rights as its basic value, but in fact they are kinds of legislation that restricts the rights and even sets up obligation. In terms of their intrinsic value, some legislation should restrict power, but as a matter of fact, they expand or laissez-faire power instead. Some legislation should promote the rule by law, but they become a means to legalize the rule by people. The state, social and individual interests should be unified, but in some legislation, the individual interests is ignored while the state and social interests are on a supreme position...All these phenomena may become the opposite to the expected value of legislation and they have not to their best played the role in promoting social stability and development of rule of law.
    Some scholars believe that "efficiency and fairness are a pair of contradictions in social development ", [6] we must adhere to the principle of "giving priority to efficiency while taking fairness into account", namely taking interests and justice into account, in dealing with such contradictions. In my opinion, I don't think it is right to set efficiency against fairness. It is known to all that if we want to increase productive force, we must improve the efficiency of production. The "big pot" practice of egalitarianism in the past in China had seen that no matter you work hard or not, you did more or less, you could share the same amount of product. Such a practice can only lead to contraction of productive force and low efficiency of production. Fairness doesn't mean equal. Fair environment and mechanism can well promote the development of productive force and egalitarianism can only have people inert and restrain the productive force from development. Fairness includes fair opportunity as well as fair procedure and fair result. The fair opportunity can create good competitive mechanism, activate and arouse people's productive enthusiasm and creativity, and can have people as labor force best integrated with other productive factors to tremendously increase the efficiency of production and work. In this sense, the fair opportunity is not contradictory with the increase of efficiency, moreover, they are inseparably interconnected. The fair procedure is set up to guarantee the realization of fair opportunity, with similar function and result as the fair opportunity. What the fair result namely the fair distribution identifies is the standard for fair and just distribution. Chaim Perelman pointed out that the fair distribution has six conceptions: 1) non-difference equal value distribution, which is an abstract and absolute fairness; 2) value distribution according to moral conduct, which is the moral standard; 3) value distribution according to work, namely "distribution according to work", which can only guarantee the equal distribution among those with same efficiency; 4) value distribution according to demand, which requires to narrow the gap between the rich and the poor; 5) value distribution according to one's social status, which indicates only the distribution among people with same status is equal; 6) value distribution according to legal rights, which just embodies that people are equal in applying laws. [7] It is impossible for any other kind value distributions to be equal but the ideal absolutely equal distribution standard mention in the first distribution category. In market economy, the distribution mechanism centering with "distribution according to work" expects a kind of fair distribution means in the process of pursuing "equal work for equal pay". As a result, it stimulates people to get high pay by working more efficiently. This relatively equal distribution mechanism does not sacrifice efficiency. In fact, it is not fair distribution but unfair egalitarianism or unfair competitive speculation that effect and lower efficiency. The implication of the principle "giving priority to efficiency while taking fairness into account" is to gradually improve people's living standard while promoting the development of productive force. But this opinion fails to consider the fact that efficiency and fairness are inseparably interconnected. It will achieve the opposite result to put either efficiency or fairness on a subordinate or the opposite place.
    The emphasis of the value of legislation is the unity of interests and justice (fairness) to handle the contradiction of all kinds interests with justice principle. Legislation is not to distribute interests for interests, but to distribute interests for the realization of justice, and to distribute and evaluate the distribution of interests according to justice. So when legislators design, think over the favor or balance of different interests, they must meet the need of fair value.
    
    IV. The Value Selections of Legislation
    Basically, the intrinsic value of legislation does not have the question of selection. What legislators need to do is to feel and recognize the existence of the intrinsic value and its needs, and to willingly run the acceptable moral principles and sense of justice through the process of legislation to properly and reasonably select the value (interests) of legislation. As I mentioned before, it is unavoidable to have interests conflicts and unbalance in a pluralistic society. The legislator's duties are to control the conflict or unbalance of interests within a fair scope through value selection for a good order of pluralistic interests structure.
    The value selection of legislation is usually considered as a subjective action with specific purpose, but in fact it includes passive and active action. For some legislation, legislators may be all at sea about what interests they should identify as their principal selection. When they do not know what kind action they should take, at least they should be sure what they should not do. This "should-not" is a passive action, or no action. It can be summarized as follows:
    1. Selections against the expected value of legislation should not be made. The intended value of legislation is referred to the expected objective of the legislation. For instance, the intended value of legislation on women's interests is to offer special protection to women as a special social group; The intended value of legislation on journalism is to protect people's basic right of freedom of speech and expression of opinions through media; The intended value of constitution is to normalize power and protect human rights. If the value selection of legislation is against its intended value, this legislation is unjust in essence, so it does not have the reason to exist.
    2. Selections against most people's will should not be made. In modern democratic society, laws should reflect people's will but not the imposition of personal or minority's will, interests and desire on the others. So "when laws only serve the interests of one person or the minority and are harmful to the majority of the society, they are not just. "[8] Unjust legislation should be restrained.
    3. Selections harmful to the authority of the rule of law should not be made. The authority of the rule of law is an important foundation to maintain the security and stability of the modern society. If the price of legislation will shake the foundation of the society, such legislation should also be restrained. For example, some local governments passed bills without authority. Although the contents and the results of the legislation might be all right, this action as legislation violates the rule of law "to the states organs, all that laws do not permit should be restrained", as a result, it is harmful to the authority of the rule of law.
    4. Selections against human dignity and basic human rights should not be made. International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights both passed by the United Nations explicitly stipulate that "the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. "[9] The legislation in China should make every effort to follow these conventions in order to guarantee the value selection in line with the justice standard of the international society.
    We should take active action for the value selection of legislation to make up the gap between conflicting interests. But, "In countries where laws are defined as the major carrier of common value and as the controlling power, the problem is...what kind of value should laws promote?"[10] How do laws seek balance among different interests and what kind balance do they seek? The basic means for legislation to seek balance is to guarantee the justice of procedure or "justice in form". In order to guarantee the justice of procedure, we must first establish a scientific procedure system to have the proposal, discussion, vote and promulgation of bills completed in good order. Second, we must guarantee that people could mostly participate in the legislation in various forms. The result of value selection based on democratization might not be the most ideal one, but after all it is the selection of some interests that the common will makes according to bias. This sort of selection is relatively just when there is no other more reasonable substitution forms. Third, in order to ensure people's participation in and supervision of the legislation, we must keep the process of legislation as open as possible to let them know what their representatives do in legislative organs and how legislative organs collect and integrate people's demand to interests. We must encourage public opinion to take part in the process of legislation and strengthen the linkage between legislative organs and people. To express the above demand in ethnic philosophical words like Rawls said, the justice in form requires "laws and management in system be applied equally (in the same form) to people within the stratum they regulate". "Same issue is handled in a same way. The similarities and differences concerned are judged by the established norm. "[11] The justice of the legislation process can only guarantee reasonable value selection in form but not completely guarantee the justice of result. Therefore, in order to achieve the balance of interests, we must make value selection of interests distribution by legislation.
    The value selection of interests distribution should pay attention to the following principles:
    1. Freedom principle. Legislation is a process of pooling people's will. Since the interests that legislation distributes concern all or some people, when making legislation, we must listen carefully to their opinions and suggestions, respect the ways and results of their selections of interests, to shift the legislation from "for people" to "by people" to ensure people's will be expressed thoroughly and freely:
    2. Principle of taking different interests into account. When different interests are conflicting, legislators should take all aspects concerned of interests distribution into account. All interests should be taken into reasonable account, although there is an order of priority and importance.
    3. Fairness principle. Every effort should be made to fairly treat the way and result of value selection to either maintain the justice of form or the fairness of result.
    4. Principle with necessary different treatment. We can properly apply the principle with different treatment in the distribution of value selection, if there are every necessary reasons, such as limiting some public freedom for the sake of national security. But the minority with sacrificed interests should be compensated properly while the interests of the majority are protected.
    Of course, it is very difficult to apply these principles. These principles will be of practically significance if they are further analyzed by value selection of special interests. For instance, individual interests and national interests are contradictory and interdependent, how do legislators made value selection between them? I think, generally speaking, the individual-interests-oriented or the nation-interests-oriented value is the basic prerequisite for making such a value selection. If this prerequisite is considered as absolute, incompatible, it is unnecessary to make value selection of individual interests and national interests. The key issue is that no matter what orientation they take, legislators must not neglect the interests of the other side. The individual interests and national interests are not abstract. The individual interests can be further divided into personalized interests and material interests, while the national interests into sovereignty interests and economic interests (these four kinds of interests can be further elaborated and quantified). Upon the division of the individual and national interests, it seems possible to make a qualitative selection: the national sovereignty interests is supreme to the individual personalized interests, and national economic interests is supreme to the individual material and personalized interests in the nation-interests-oriented system. But the quantitative selection can not be treated as the same. If we consider the national economic interests and individual material interests in the civil law relation, we should make value selection of legislation according to equal and voluntary principle.
    In a word, the realization of fair value selection of legislation is a very complicated and difficult project as well as a real problem that China is facing and must solve in the process of deepening the economic and political reform. I hope this article can "cast a brick to attract jade" to arouse the attention of the law field to further think and study this issue to lift the studies on legislative theories in China to a new level.
    
    Notes
    1. Austin, The Province of Jurisprudence Determined, 1st Edition, New York, 1854, quoted from Philosophy of Law by Martin P. Golding, translated by Qi Haibin, p. 46, Sanlian Press, 1987.
    2. T. L. Beanchamp, Philosophical Ethics, translated by Lie Kele, pp.327~328, China Social Science Publishing House, 1990.
    3. Roscoe Pound, Social Control through Law, pp.36~37, Commercial Press, 1984.
    4. Selected Works of Marx and Engels, p. 537, Volume II.
    5. Selected Works of Marx and Engels, pp. 121~122, Volume IV.
    6. ShenZongling, Jurisprudence p. 61, High Education Press, 1994.
    7. Lu Shilun, On the Origin of Thought in Laws in the West, pp.232~233, Publishing House of People's Public Security university of China, 1993.
    8. P.-H. D. Barond' Holbach, On Natural Politics, pp. 24~25, Commercial Press, 1994.
    9. International Documents and Organizations of Human Rights, p. 10 & p. 22, Social Science Documentation Press, 1993.
    10. Henry W. Ehrman, Comparative Legal Cultures, translated by He Weifang, Gao Hongjun and others, p. 65, Sanlian Press, 1990.
    11. John Rawls, A Theory of Justice, translated by He Huaihong and others, p. 54, China Social Science Publishing House, 1988.
    

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