Right, power, and faquanism : a practical legal theory from contemporary China / edited by Tong Zhiwei ; translated by Xu Ping.
2018
KNQ446 .T67 2018 (Map It)
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Title
Right, power, and faquanism : a practical legal theory from contemporary China / edited by Tong Zhiwei ; translated by Xu Ping.
Published
Leiden ; Boston : Brill, 2018.
Call Number
KNQ446 .T67 2018
Former Call Number
Ch.P 200 T61 2018
ISBN
9789004381278 (hardback : alk. paper)
9004381279
9004381279
Description
xvi, 399 pages ; 25 cm.
System Control No.
(OCoLC)1042075727
Summary
In Right, Power, and Faquanism, Tong Zhiwei proposes that right and power are ultimately a unified entity which can be named "faquan," and that the purpose of law should be to establish a balanced faquan structure and to promote its preservation and proliferation. "Faquan" is thus a jurisprudential category reflecting the understanding of the unity of right and power. It has interest protected by the law and property with defined ownership as its content, and manifests itself as the external forms of jural right, freedom, liberty, jural power, public function, authority, competence, privilege, and immunity, etc. Faquanism relies mainly on six basic concepts (faquan, right, power, quan, residual quan and duty) to analyze the content of interests and property in all legal phenomena.
Note
In Right, Power, and Faquanism, Tong Zhiwei proposes that right and power are ultimately a unified entity which can be named "faquan," and that the purpose of law should be to establish a balanced faquan structure and to promote its preservation and proliferation. "Faquan" is thus a jurisprudential category reflecting the understanding of the unity of right and power. It has interest protected by the law and property with defined ownership as its content, and manifests itself as the external forms of jural right, freedom, liberty, jural power, public function, authority, competence, privilege, and immunity, etc. Faquanism relies mainly on six basic concepts (faquan, right, power, quan, residual quan and duty) to analyze the content of interests and property in all legal phenomena.
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Online version: Tong, Zhiwei, 1954- author, editor. Right, power, and faquanism Leiden ; Boston : Brill, 2018 9789004381285 (DLC) 2018030700
Record Appears in
Table of Contents
Foreword
ix
Preface
xii
Introduction
1
1.
From Analytical Jurisprudence of the West to Semantic Analysis Jurisprudence of Present China
1
2.
Limitations and Shortcomings of Chinese and Foreign Semantic Analysis Jurisprudence
12
3.
Elaboration of a Practical Legal Theory with Faquan as the Core Category
24
3.1.
Strict Differentiation between Right and Power Based on Property Attributes
26
3.2.
Identification of Right and Power as Two Parallel Concepts of the Most Important Legal Phenomena
27
3.3.
Core Category of Faquan Referring to the Unity of Right and Power
28
3.4.
Duty is Considered as a Jurisprudential Category Representing Loss of Interest and Expenditure of Property
31
3.5.
Jurisprudence as the Theory of Fundamental Research of Interest and Property Distribution
31
3.6.
Categorical System of Jurisprudence Is Established Based on the Objective World of Legal Life
32
1.
Investigation and Reflection on Fundamental Propositions of Traditional Legal Studies of China
36
1.
Re-examination of the Status of Rights and Duties and Their Relationship
36
1.1.
Basic Views of the Existing Theory and Its Logical Premise
37
1.2.
Main Shortcomings of the Existing Theory
40
1.3.
My View on the Relationship between Right and Duty
51
2.
Overview of Right-Centric Theory in the First Half of the 20th Century in China
58
2.1.
General Background and Main Views in the Research of the Center of Law in the First Half of the 20th Century
59
2.2.
Evaluation of the Contribution and Shortcomings of the Research of the Center of Law in the First Half of the 20th Century
64
3.
Renewal of Existing Chinese Semantic Analysis Jurisprudence
69
3.1.
Serious Deficiency in Theory
74
3.2.
Weak Basic Research in Supporting Theoretical Systems
80
3.3.
Identification of the Basic Object and Scope of Legal Studies Is Removed from Reality and Devoid of Factual Support
85
3.4.
Assessment of the Most Basic Contradiction of Social-Legal Life Is Not Consistent with the Reality
90
3.5.
Inappropriate Disciplinary Basic Analysis Method
92
3.6.
Conclusion: Right-Duty Jurisprudence Should Be Renewed
104
2.
Fundamentals of Faquanism
108
1.
Legal-Philosophical Explications of Faquan
108
1.1.
External Characteristics of Faquan
109
1.2.
Interest-Attribute of Faquan
110
1.3.
Essential Attributes of Faquan
114
1.4.
Historical Attributes of Faquan
117
1.5.
Academic Value of the Concept of Faquan
121
2.
Fundamental Propositions of Faquanism
123
2.1.
In Law, the Most Important Phenomena Are Right and Power, and the Most Fundamental Contradiction Is That between Right and Power
123
2.2.
Rights Are Legal Forms of Individual Interest and Individually-owned Property
127
2.3.
Power Is the Legal Form of Public Interest and Public Agency-owned Property
140
2.4.
Right and Power Are the Unity of Opposites, and Can Convert into Each Other
148
2.5.
Faquan or the Unity of Right and Power Should Become an Independent Analytical Unit in Legal Studies
156
3.
Elaboration on the Connotation of Faquan in Legal Relations
161
3.1.
Significant Deficiency of the Existing Theory of Legal Relations
162
3.2.
New Conception of the Content Structure and Social-Economic Attribute of Legal Relations
167
3.3.
Reorganization of the Concept of Legal Relations
171
3.
Faquanist Theory of the Center of Law
177
1.
How Does a Faquanist View the Center of Law
177
1.1.
Background for the Revival of Right-Centric Theory
178
1.2.
Fundamentals and the Real Value of Right-Centric Theory
184
1.3.
Shortcomings of the Research Process of Law-Centricity and Their Negative Influence on Right-Centric Theory
195
1.4.
Severe Shortcomings of Right-Centric Theory Itself
200
1.5.
Conclusion
211
2.
Core Contents of Faquanism
212
2.1.
Reasons for Formulating the Conjecture of Faquanism
213
2.2.
Essentials of Faquan-centricity
221
2.3.
Proof of Faquan-centricity
227
2.4.
Response to the Article "The Theoretical Logic of Right-centricity"
250
3.
Supplementary Argumentation for Faquanism
256
3.1.
Maximization of the Total Volume of Faquan is the Benchmark of Legal Balance
256
3.2.
Faquanism Is Fundamentally Different from Balance Theory
259
3.3.
Author of the "Discussion" Fails to Properly Understand the Center of Law
261
3.4.
Faquan-Centricity Is Different from "Society-centricity"
263
3.5.
Faquan Has Subject and Representative
267
3.6.
There Is No Contradiction between Faquan-centricity and the Actual Need for Checking Power and Protecting Right
269
3.7.
In Contemporary China, an Important Content in Advocating Faquan-centricity Is to Reform Power-Dominant Faquan Structure
271
4.
Methodological Foundation of Faquanism
274
1.
Epistemologist Basis of Faquanism
274
1.1.
Principle of Abstract Thinking Suitable to Legal Studies
274
1.2.
Starting Point of Jurisprudential Research
276
1.3.
Selection of the Core Categories in Legal Studies
277
1.4.
Method of Expanding New Thinking in Legal Studies
278
2.
Proper Positioning of Class Analysis and Faquan Analysis
280
2.1.
Legal Significance and Traditional Status of Class Analysis Method
281
2.2.
Proper Status of the Class Analysis Method Today
285
2.3.
From Class Analysis to Faquan Analysis
288
3.
Essence of Law in Faquanism
295
3.1.
Essence of Law: A Reality or an Illusion?
295
3.2.
What Method to Use to Identify the Essence of Law?
300
3.3.
What Theory of the Essence of Law Should Be Established in Today's China?
307
5.
Interpretative Framework of Legal Phenomena of Faquanism
311
1.
Categorical System of Faquanism as a Legal Theory
311
1.1.
Faquan Is Best Qualified as the Core Category of Legal Studies
311
1.2.
It Is More Appropriate to Identify Six Concepts as the Basic Categories of Legal Theory
315
1.3.
Strengths of the New Categorical Structure
322
2.
Analytical Model of Faquan as a Tool for Legal Studies
323
2.1.
Essence of Basic Legal Phenomena Is Divided into the General and the Specific
325
2.2.
Total Developmental Level of Productive Forces Has Corresponding Relationship with Quan and Faquan in Terms of Quantity
327
2.3.
Change of Economic Relations Has No Necessary Connection with the Absolute Volume of Faquan or Quan
328
2.4.
Specific Existing Modes of Quan Form over the Course of History
329
2.5.
Subject of Property Ownership Can Be Transferred
331
2.6.
There Is a Conversion-reversion Relation between Property, Interest and Basic Legal Phenomena Objectively
332
2.7.
Protecting Right Is Equally as Important as Protecting Power, or Even More Important
335
2.8.
There Should Be Equal Legal Protection of the Property of Various Subjects
336
3.
Interpretative Design of Legal Phenomena of Faquanism
338
3.1.
Necessity of Forming Systematic Theory
339
3.2.
Rebirth of "Faquan" and Its New Meaning
341
3.3.
Fundamentals of the New Interpretation System
343
3.4.
Further Expansion of the Fundamentals
349
Conclusion
354
Selected Bibliography
369
Index
383