In this thesis I will discuss and criticize different legitimation for lawmaking,
including ancient and contemporary Chinese theories, and Western representative
perspectives on lawmaking. I will disclose disadvantages of Chinese lawmaking
system. As a new research project of Chinese law, I argue that both the traditional
and contemporary Chinese lawmaking lacked elements of communication. The
top-down lawmaking mode was the reality as well as the dominant theoretical
justifications of legislation in China. I believe that the top-down lawmaking mode in
China was insufficient in its justifications for legitimacy; neither was it beneficial for
increasing the degree of individual freedom and rights. Therefore it is better to
absorb positive Western lawmaking elements, especial taking a shift from a
non-communicative mode to a more interactive and cooperative mode.
Western theories of lawmaking could contribute to Chinese future legal reform.
Theories of disagreement and individual freedom have positive contributions to this
proposed change. After my introduction and analysis of Western theories, I attempted
to escape from pure theoretic discussion about law and legality, and try to provide a
practical application of communicative lawmaking in China. Relying on the
contributions of Western lawmaking theories, but at the same time realizing their
difficulties in their application in Chinese contexts, I believe that Confucianism, a
Chinese philosophy of love and law could contribute to a discourse theory of
lawmaking. The core of Confucianism, Ren (‘仁’ , loving the people, humanism)
provided a possible theoretical background for a discourse theory. Professor
Bankowski’s argument for the interplay of law and love, the inside and the outside
systems, also initiated a debate for the communicative decision-making, and is thus
employed to solve the difficulty of applying Western theories into Chinese contexts.
The ‘appropriate’ lawmaking in this thesis refers to a communicative lawmaking
mode, in contrast to the non-communicative mode that defended by Chinese legalism
and contemporary justifications of lawmaking. I attempt to introduce this interactive
and cooperative lawmaking structure to balance individual rights and state interests.
This structure would go against the grain of the traditional top-down legislation. In
this new structure individuals’ voice could be heard and paid attention to, which is a
system of achieving Ren ( humanism)
