The Concept Note can be read HERE. The Event centered on developments in jurisprudential theories that have application not just for the study of Chinese developments, but which also have substantial application for other systems.
This post includes proceedings of the Event and was prepared with Flora Sapio (Uni Naples and CPE).
The theory grew out of Professor Tong's increasing frustration with the Chinese jurisprudential binary between right and duty. He noted that the organizing jurisprudence grounded in the right-duty binary had been developed strongly from the mid 1930s in China (e.g., "law is the regulation of right;" "The task of law is to regulate right and duty;" "The center of legal phenomena is right"). It was embraced with great vigor in the early part of the period of Reform and Opening Up (1989-1993) (e.g., “In modern society with developed commodity economy and democracy, the law is right centric;” All legal norms are centered on rights and duty;" and "All issues of law are reduced to right and duty;"). By 2010 the binary had become embedded in orthodox jurisprudence, appearing in a 2010 text approved by the Education Ministry (e.g., “Law is social norm regulating right and duty”). In that context he noted that it was a pity that contemporary interrogation of the right-duty binary never explicitly drew from the 1930s period. He suggested that lapse made it more likely for such a jurisprudence to lose its historical depth.
As a consequence, Professor Tong suggested that rights and power serve as the most important phenomenon of jurisprudence, especially in it project of ordering jural relations. It follows that the most important contradiction, that between right and power, rather than between right and duty. In all legal life. What is POWER?— It refers to jural power, function, authority, and competence enjoyed by public agencies such as governments and the phenomena such as privilege and immunity that are enjoyed by officials in performing their functions. Power is the legal expression of the public interest and public property is its material bearer. What is RIGHT?—It represents jural rights, freedom and liberty, as well as privileges and immunities enjoyed by individuals such as or. Right is the legal expression of the private interest and private property in its material expression. Faquan—represents jural rights represents freedom, liberty, privilege and immunity as well as jural power. Academic expression of all interest and property protected by law. It is a unified entity that must be given a name.
• it has essentially provided one of the possible answers to the philosophical conundrum about law and exception;
• it has bridged the gap between “Western” and “Eastern” legal philosophy;
• it has produced a theory alternative to existing theories of the law in “Western” legal philosophy - one all serious legal philosophers will have to consider;
• limited to the narrower field of China studies, it has proven how conceptions and theorizations of law can still evolve.
The discussion that followed the principal presentation brought out these themes. There were interesting questions relating to the application of faquan to the structures and mediating choices within Indian caste rules as well as the application to divisions within the United States. There was a long discussion of the relationship between faquan as an organizing and relational theory and the moral and normative principles within which organizational choices can be discovered.