Case Expression of Concrete Rule of Law (Part I)
　　In 2011 the socialist legal system with Chinese Characteristics was established, marking the significant progress made in the implementation of the basic strategy of rule of law in China, and at the same time it also means that the construction of rule of law in China has entered a new stage. The construction of rule of law is a systematic project, and it needs not only the conceptual transformation from “the era of rule by law” to “the era of rule of law”; but also the shift of legislative focus from “the era of legislations” to “the era of amendment to legislations”, and the change of the path of rule of law from “the era of legislations” to “the era of interpretation”. Based on such a historical background, this article provides reflections on the relation between the concrete rule of law and case expression.

　　I. Multi-dimensional Expression of Rule of Law

　　A. Discourse expression of rule of law

　　With the changes in the international politics and economic new order, especially since the outbreak of the financial crisis in 2008, China, as a socialist country, peacefully rises, and the competition between the several poles (the U.S., EU, the BRIC countries) in the world pattern has become increasingly fierce. The competition of comprehensive national power is multi-dimensional and wide ranging, wherein the competition of soft power in such fields as ideology, civilized discourse, science and technology is becoming more and more important. In recent years, with the gradual progress of the basic strategy of building a socialist country under the rule of law, especially with the presentation of socialist concept of rule of law, how to construct the discourse system of rule of law with Chinese characteristics in order to take the initiative and respond effectively to the challenges of the West in the ideological fields of human rights and rule of law has become the major topic of official and academic concerns. For instance, Chinese scholars, based on the background that “ideology in the field of rule of law in recent years demonstrates a relatively complex situation, and there are differences in understanding the due shape and ideal perspective of rule of law in China among all aspects of the society”, put forward the proposition that it is necessary to “strengthen the independent construction of ideology of rule of law in China, that is, to take the socialist concept of rule of law as the foundation and construct the discourse system of rule of law with Chinese characteristics”. First, to summarize a number of characteristics of the “liberal theory of the rule of law” in the Western ideology of rule of law, to conduct analysis from three aspects: “illusory understanding of the rule of law”, “abandoned by modern society” and “political attempt of Western forces carried in the dissemination”, and to reach the conclusion that “the liberal theory of the rule of law is not worth believing”. Next, to expound “the necessity of independent construction of Chinese ideology of the rule of law” from four aspects: “from the perspective of the internal and external relation of the rule of law ideology”, “from the perspective of the trend of human development of rule of law”, “from the perspective of historical responsibility of restoration of socialist legal system”, and “from the perspective of actual progress of construction of rule of law in China”; and, at the same time, to propose four principles of constructing the discourse system of the rule of law with Chinese characteristics: “to establish the discourse authority of the socialist concept of rule of law”, “to adhere to the practical discourse stance”, “to advocate the innovative discourse thinking”, and “to keep an open discourse attitude”. Another example. Some scholars maintain that construction of modern Chinese academic discourse system is an extremely urgent problem and it directly relates to the future development of the Chinese jurisprudence. The following basic principles should be followed in the construction of the contemporary academic discourse system of Chinese jurisprudence: organic combination of the national language with the spirit of the time; organic combination of Marxist jurisprudence with Chinese characteristics with Chinese legal experience with Marxist characteristics; and organic combination of reasonable use of Chinese and foreign outstanding legal heritage for reference with theory innovation grounded on reality.

　　In my opinion, attention should be paid to the following points in the construction of discourse system of rule of law: first, how to deal with the relation between the localized discourse and universalized discourse of rule of law. Rule of law is the most effective and practical mode of ruling ever found by the human being, and it has been adopted by more and more countries and regions. With the divisions between ancient rule of law/modern rule of law/contemporary rule of law, rule of law in capitalist countries/rule of law in socialist countries, rule of law in developed countries/rule of law in developing countries, rule of law in common law system/rule of law in civil law system, British rule of law/American rule of law/Germany rule of law/French rule of law/Chinese rule of law, there exist different discourse with respect of rule of law to adapt to these divisions. Of course, these different divisions fall within Weber’s “ideal type”, and there always exists particularity as well as universality between them. As far as the construction of Chinese discourse of rule of law at present is concerned, the most important point is to deal well with the relation between “ancient—modern” and “Chinese—Western”. The former mainly involves the problem of inheritance, development and innovation of the traditional discourse of rule of law, and the latter involves the problem of reasonable use of the Western civilized discourse of rule of law for reference and the scientific absorption of it. For instance, “Gu Wen顧文” portrayed the picture of “theory of rule of law on liberalism”, and at the same time he cited many other Western theories on rule of law to rebut and challenge it. Here, a series of questions may be involved such as “what is West”, “what is liberalism”, “which West”, “which kind of liberalism” as well as how to accurately and comprehensively understand “that West” and “that kind of liberalism”, etc. If we conduct one-sided understanding of the West and the Western theories, or concentrate on one western country or one kind of Western theory, apparently it might trigger endless debate. Second, how to deal with the relation between the ideological discourse of rule of law and the total ideological discourse. The relation between the ideological discourse of rule of law and the total ideological discourse should be that of part and whole, particular and universal, individual and general. China is a socialist country under the leadership of the Community Party, and always adheres to an organic and unified ideological discourse system advancing with the times: a theoretic system of the Marxism—Mao Zedong Thought—socialism with Chinese characteristics, while the system of ideological discourse of rule of law is only one of its categories with the characteristics of speciality and particularity. Therefore, in the process of constructing the Chinese discourse system of rule of law, we should place it into the abovementioned total ideological discourse system and reflect on its relevance. We should also take into account the uniqueness and regularity of the discourse of rule of law (for instance, its difference from the political discourse) and reflect on its technicality. Third, how to deal with the relation between the official discourse of rule of law and the academic discourse of rule of law. From the perspective of the subjects of expression, the discourse of rule of law can be divided into the official discourse of rule of law and the academic discourse of rule of law. There are differences in many aspects between these two kinds of discourse of rule of law: (1) The subjects of expression are different, the former the leaders of the Party and the State as well as the central state organs, and the latter mainly the legal researchers. (2) The media of expression are different. The form is mainly manifested as the official documents (the normative documents and the leaders’ speeches) while the latter is mainly manifested as academic papers and writings. (3) The authority of expression is different. The former is manifested as authoritative dominance while the latter is manifested as the theoretical persuasion. (4) The ways of expression are different. There exist differences in terms of language style, demonstration of details, length of content and skills of presentation. Just as distinction made in the study of norms of criminal law between the legislators’ perspective of “criticism” and the judicial perspective of “interpretation”, likewise, the abovementioned two different kinds of discourse should also be distinguish in the process of constructing the discourse system of the Chinese rule of law; at present, just as the existence of the phenomenon of the criminal law researchers shuttling back and forth between the position of the legislators and that of the judges and the confusion between the “critical discourse” and the “interpretative discourse” in the study of criminal law, there exists the marks of unclear differentiation and confusion between the “official discourse” and the “academic discourse” in the expression of discourse of rule of law.

　　B. Regulation expression of rule of law