The Things Lady Justice Tells us Rule of Law & Some law theories

Origin of Law Plato —The Public Socrates/Aristotle Law of nature— the only criterion Law and morality Any other example?

亚里士多德说, 法治是良法之治。 Good law v.s bad law—how to define them? An offcial must be bad v.s.one must be bad to be an offical—which is worse? 孟德斯鸠说：有两种坏现象, 一种是人民不 遵守法律 ; 另一种是法律本身使人民变坏。 后一种祸害是无可救药的, 因为药物本身就 包含这种祸害。

LAW 灋，刑也。平之如水，故从水；廌所以触 不直者去之，从去。 ” Can you understand the explaination? What does it imply? 法

Who is Lady Justice ？ Tyche Fortuna （罗马神话中命运女神） Nemesis （复仇女神）

What do you see? blindfold (impartial) scales (weighing) sword (power)

Legislative Council Building, Central, Hong Kong) Shelby County Courthouse, Memphis, Tennessee, USA

The Central Criminal Court or Old Bailey, London, UK Sculpture of Lady Justice on the Gerechtigkeitsbrunnen in Frankfurt, Germany

Blindfold Since the 15th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents objectivity, in that justice is or should be meted out objectively, without fear or favor, regardless of identity, money, power, or weakness; blind justice and impartiality. The earliest Roman coins depicted Justitia with the sword in one hand and the scale in the other, but with her eyes uncovered. Justitia was only commonly represented as "blind" since about the end of the 15th century. The first known representation of blind Justice is Hans Gieng's 1543 statue on the Gerechtigkeitsbrunnen (Fountain of Justice) in Berne( 瑞士首都伯尔尼 ).

Scales Instead of using the Janus approach, many sculptures simply leave out the blindfold altogether. For example, atop the Old Bailey courthouse in London, a statue of Lady Justice stands without a blindfold; the courthouse brochures explain that this is because Lady Justice was originally not blindfolded, and because her “maidenly form” is supposed to guarantee her impartiality which renders the blindfold redundant. Another variation is to depict a blindfolded Lady Justice as a human scale, weighing competing claims in each hand. An example of this can be seen at the Shelby County Courthouse in Memphis, Tennessee.

What does it represent? Lady Justice is the symbol of the judiciary. The goddess is equipped with three symbols of rule of law:  a sword symbolizing the court's coercive power(DR);  scales representing the weighing of competing claims;  and a blindfold indicating impartiality.

Differences between Formal Justice &SubstantialJustice Equal— 平等 Impartiality— 不偏不倚 Justice— 正义 The final goal—substantial justice The solution—formal justice

Equality:If different groups of people have equal rights or are given equal treatment, they have the same rights or are treated the same as each other, however different they are. It emphasize the legal status of both parties.It is the basis to substantial justice. e.g. the principle of reasonableness ( 合理 行政原则 ) ：行政机关应平等对待当事人， 不歧视。

Impartiality stresses the procedural justice—procedural law:code of criminal procedure/Law of Civil Procedure/Administrative Procedural Law e.g. 公安机关拘留时必须出示拘留证。紧急 情况下可以不要拘留证。

Justice is one of the most important value persued by law,it is the primary standard of law as well as the motive power of law—the relationship between law and virtue:school of natural law(Lex injusta non est lex )/the positivist school E.g.real-name registration system

Is impartiality the only value persued by law? Basic values: Freedom Justice Order Nonbasic values: Benefit/interest efficiency

Freedom is the nature of law and the supreme goal of law.Why?Because it is the basic need of human nature. Chapter Two:The Fundamental Rights and Duties of Citizens— 政治权利和自由（言论自由， 政治自由）、宗教信仰自由、人身自由（住宅不 受侵犯、通信自由等等） Law protects freedom by impose restrictions on freedom.Can you give an example?

Order:in accordance with common sense and is more about procedure rather than materiality. Which goes first? Freedom ＞ Justice ＞ Order When the superior value goes first,it may infringe upon an inferior value,but there must be a limitation. 1.principle of presumable innocence 2.“ 戒严期间，国家可以在戒严地区实行通讯 管制 ” 。

The reflection in Civil Law 1.The Fairness Doctrine( 公平原则 ) GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE S REPUBLIC OF CHINA Article 4 2.Principle of Social Ethnics( 公序良俗原则 ) GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE S REPUBLIC OF CHINA Article 6

What’s the essence of rule of law? Rule of law( 法治 ) Rule by man （人治） What’s the fundamental difference between these two terms?

If we say “all the rule of law come down to rule by man”,how could you explain it with dialectical thinking mode?( 辩证思维模式 )

The meaning of Rule by Man Tang & Song Dynasty written law customary law:imperial order( 敕 )—superior to laws TangLuShuYi--Confucian moral codes TangLiuDian—Oldest Administrative Law Who made the laws ？ the ruling class Evil Law is Law

The theory of “rule of law” in Criminal Law The principle of legality( 罪刑法定原则 ) 1.No law does not expressly provided for the crime. 法无明文规定不为罪。 2.No penalty without law making it so. 法无明文规定不处罚。

Rule by man With limitation(Democracy) Without limitation(Despotism ['despətizəm] ) rule of virtue&rule of law virtue and law are not binding

virtue and law Differences ？ Relation ？ Rule of law is the last line of defense of rule of virtue. Without law,virtue can’t be enforced. Without virtue,law will be overwhelmed.

Ancient Chinese Law The ancient Chinese national administration experienced from rule by rites( 礼治 ), to rule by law and then to rule mainly by virtue with penalty as assistance. “bright virtue and careful punishment” （明 德慎刑） “rule of morality with its priority to penalty” （德主刑辅）

The essence of Rule of Law Criminal Law of the People's Republic of China Who’s the legislature? NPC(standing Committe) lex injusta non est lex ( 恶法非法 ) Democracy & Human Rights

Why law is necessary in a society? Guidance:what should I do? Evaluation:what he does means… Education:everyone in the society Prediction:the relationship between you and me Enforcement ： observe the law

What do people do with law? 1.practice law( 实践法律 ) ： work as a lawyer/judge/prosecutor 2.Legislation—lagislature  Legislature ： NPC and its standing committee the State Council Other legislatures continue

中华人民共和国《立法法》 Law of the People's Republic of China on Legislation (Adopted by the 3rd Session of the Ninth National People's Congress on March 15, 2000, promulgated by Order No.31 of the President of the People's Republic of China on March 15, 2000, and effective from July 1, 2000.)

Article 7 The National People's Congress and the Standing Committee of the National People's Congress exercise the state authority of legislation. The National People's Congress enacts and amends basic criminal, civil and state structure laws and other basic laws. The Standing Committee of the National People's Congress enacts and amends laws other than those that shall be enacted by the National People's Congress; and makes partial supplement and amendment to laws enacted by the National People's Congress when the National People's Congress is not in the session, however, such supplement and amendment may not contradict the basic principles of laws concerned.

Article 8 The following matters have no alternative but to enact laws: 1. matters concerning state sovereignty; 2. the formation, organization, functions and powers of people's congresses, people's governments, people's courts and people's procuratorates at various levels; 3. the national regional autonomy system, special administrative region system and grass-roots mass autonomy system; 4. crimes and punishments; 5. compulsory measures and penalties such as deprivation of citizens' political rights and restrictions on personal freedom; 6. acquisition of non-state-owned property; 7. the basic civil system; 8. basic economic system and basic systems on finance, taxation, customs, banking and foreign trade; 9. procedural and arbitral systems; and 10. other matters on which the National People's Congress and its Standing Committee must enact laws.

Article 9 If no law has been enacted on a matter set forth in Article 8 of this Law, the National People's Congress and its Standing Committee are entitled to make the decision to authorize that the State Council may, according to the actual needs, formulate the administrative regulations first, except for the matters concerning crimes and punishments, compulsory measures and penalties such as deprivation of citizens' political rights and restrictions on personal freedom and judicial system.

Article 63 Under the pretext of not contradicting the Constitution, laws and administrative regulations, the people's congresses and their standing committees of provinces, autonomous regions and municipalities directly under the Central Government may formulate local regulations in accordance with the specific conditions and actual needs of their respective administrative areas. Large city as the term is used in this Law means a city where the people's government of a province or an autonomous region is located, a city where a special economic zone is located or a larger city approved by the State Council.(49 in all)49 in all

Article 71 In accordance with laws and the State Council's administrative regulations, decisions and decrees, the State Council's ministries, commissions, the People's Bank of China, the National Audit Office and the organs directly under the State Council with administrative functions may formulate the rules within the limits of competence of their own departments. Matters on which department rules are formulated shall be the matters for implementing laws or the State Council's administrative regulations, decisions and decrees.

Article 73 The people's governments of provinces, autonomous regions, municipalities directly under the Central Government and larger cities may formulate the rules in accordance with laws, administrative regulations and local regulations of provinces, autonomous regions and municipalities directly under the Central Government.

conclusion Laws—NPC and its standing committee Administrative regulations –the state council( 国务院 ) local regulations—some local people’s congress and its standing committee Rules—ministries and some local governments Legal validity( 法律效力 ) ？

Constitution Laws （法律） AR （行政法规） DR （部门规章） LR( 省级地方性法规 ) LGR （省级政府规章） LR （较大市地方性法规） LGR( 较大市政府规章 )

Which law to apply? law at the same status  New ＞ old  special ＞ general  New special v.s old general:the legislature Law at different status ：

Article 78 The Constitution has the supreme force of law, and all laws, administrative regulations, local regulations, autonomy regulation, separate regulation and rules may not contradict the Constitution. Article 79 The force of laws is superior to that of administrative regulations, local regulations and rules. The force of administrative regulations is superior to that of local regulations and rules. Article 80 The force of local regulations is superior to that of rules of local governments at the same level or the lower levels. The force of rules formulated by the people's governments of provinces and autonomous regions is superior to that of the rules formulated by the people's governments of larger cities within their administrative areas. Article 81 If the autonomy regulation and separate regulation lay down the adaptive provisions for laws, administrative regulations and local regulations according to law, their provisions operate within their autonomous areas. If the regulations of special economic zones lay down the adaptive provisions for laws, administrative regulations and local regulations upon the authorization, their provisions operate within their special economic zones.

Article 82 The rules of departments and the rules of local governments have the equal force, and operate within their respective limits of competence. Article 83 If the special provisions and general provisions of laws, administrative regulations, local regulations, autonomy regulation, separate regulation and rules formulated by the same organ are inconsistent, the special provisions apply; and if the new and old provisions are inconsistent, the new provisions apply. Article 84 Laws, administrative regulations, local regulations, autonomy regulation, separate regulation and rules are non-retroactive, however, except for the special provisions laid down for the purpose of better protecting the rights and interests of citizens, legal persons and other organizations. Article 85 When the new general provisions and the old special provisions of different laws on the same matter are inconsistent and it could not decide which is applicable, the Standing Committee of the National People's Congress makes a ruling thereon. When the new general provisions and the old special provisions of different administrative regulations on the same matter are inconsistent and it could not decide which is applicable, the State Council makes a ruling thereon.

3. Legal Interpretation(legally effective)  Legislative Interpretation Article 42 The right to interpret laws is vested in the Standing Committee of the National People's Congress.  Judicial Interpretation The Supreme People’s Court The Supreme People’s Procuratorate

Legal System Two legal systems in today’s world—civil law system and common law system Civil law system—follow the legal pattern of ancient Rome, written law,Germany and France,PRC Common law system—case law(precedent),USA and UK,HK

The development of Equity 12th century-14th century The trial is based on the conscious of the defendant and natural justice (law of nature). Common law is lack of flexibility, king is the judge. The king authorize the great judges to try to case as his attorney.

15th century-18th century The court of equity emerged and the judges in the court of equity are not bound by common law. They developed their own Principles. 1873~1875 The court of equity was abolished, common law and equity law merged. But as long as the law especially stated, equity law prevails.

46 宪法及宪法相关法：宪法 立法法 选举法 刑法：刑法典及刑法修正案 民法：民法通则 物权法 合同法 侵权责任法 婚姻法 继承法 行政法：行政处罚法 行政许可法 行政强制法 国家赔偿法 经济法：消费者权益保护法 反不正当竞争法 社会法：劳动法 劳动合同法 社会保险法 诉讼与非诉讼程序法：民事诉讼法 刑事诉讼法 行政诉讼法 仲裁法 调解制度 公司法 保险法 票据法 证券法 商法：公司法 保险法 票据法 证券法 Different Department laws

Discussion 1.Where could you find the statue of Lady Justice? –do research online 2.What do you think is the essence of rule of law? 3.What’s the biggest difference between rule of law and rule by man? 4.Do you think the spirit of law is important in modern society? Why or why not?

Assignment Pick one legal proverb and share your understanding of it with the whole class next week.  公正不是德性的一个部分, 而是整个德性 ; 相反, 不公正也不是邪恶的 一个部分, 而是整个邪恶. 。 — 【 Ancient Greek 】 Aristotle  只要法律不再有力量，一切合法的东西也都不会再有力量。 — Rousseau Social Contract

Thank you ！