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These two respects above are challenges that jurisprudence must face. To deal with the ethical aim of men and the efficient dispositions of men as resources, jurisprudence must seek supports from all other sciences, and adjust itself during the mutual reaction of the law and its practice.
Ⅱ. The ‘rule of law’ as a center in Chinese jurisprudence
The discussion above is all about the western jurisprudence. It may be useless to the development of the western jurisprudence, however, for the author cannot penetrate the western tradition culture and sense its pulses. In another word, it’s not a logical result of the western traditional culture; therefore it may be incompatible with the tradition itself. On the other side, we are not allowed to be more sober as a by-stander since any author who discusses another culture would have to be affected by the culture. It’s inevitable for an author to stand on two culture-points to learn from another culture for his own culture. Turning to our own jurisprudence, for convenience, some issues need to be discussed.
⒈ The paradoxical agreement between democracy and the rule of law
Democracy and the rule of law are both our ideals. Democracy is a subject more of politics, but jurisprudence has to refer to. As for the rule of law, either from the realistic level, the western societies are more progressive than ours, or from the theoretical level, more an efficient disposition of resources is from it, more it helps reach the ethical aim of men, it should be the central issue of our jurisprudence.
The real meaning of democracy is that people are self-ruled, 15 and the precise meaning of the rule of law is to be ruled by law, not by men. Despite people rule themselves through law or not, the concepts of democracy and the rule of law is not consistent, even contradictory. Although our country has dissolved the contradiction by charging the rule of law to the rule by law, it cannot help learn from other’s cultures.
Though the concept of the rule of law is definite, its connotations are wide and profound, seeming hard to comprehend. Democracy is relatively simple, here we temporarily designate it as the dictatorship of majority over minority. The problem is : the dictatorship of majority ever minority is not more reasonable than the reverse. If we name 49∶50 autocracy, 50∶49 democracy, then the difference between autocracy and democracy lies only on a ballot, which can be determined by some caprice. Here, whether it is democracy or autocracy is absurdly capricious. This is a paradox we must face.
Looking backward on history, any autocratic society could not be maintained with mere violence. Its stability must have of a base of civil opinion, in another word, the stability come from the agreement or at least acceptance of majority, in fact, it’s the majority who choose autocracy to take society under control. Since autocratic society was based on the chose of majority, at this level, couldn’t is be democratic? This is another paradox we must face.
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