The term Faquan refers to a unity of contradiction of right and power, and the term faquanism denominates a theory on the origin, distribution, application, and destination of the unity.
The conjecture that various jural rights and powers are ultimately a unity was formed in 1993, when I was 0n the faculty of the Department of Political Science of Wuhan University and in the process of writing my dissertation for a PhD in constitutional jurisprudence. A paper discussing systematic reconstruction of constitutional jurisprudence based on this conjecture was published in Chinese Journal of Law in 1994. Shortly after that, Dr. Zhao Shiyi and Dr. Zou Pingxue published a paper that substantially challenged and criticized some of my points, particularly the fact that I only ventured the assertion that right and power are a unity but failed to substantiate it with proper justification. For close to a year after their critique, I was agonized over my inability to adequately justify that jural right and power are ultimately a unity. During the process of testing various methods of justification, I started to focus on G. W. F. Hegel’s “absolute method,” and the method of elevating from perceptual concreteness to abstract and then from abstract to reasoning concreteness that Karl Marx established upon his materialistic modification of the “absolute method.” There is much lively display of this research method of Marx’ in his work, The Capital, which was precisely the required course material that I spent considerable time on during my years pursuing my Masters degree in the mid-1980s.
Based on this method, as a logical process, I first defined the object of research as various “quan,” and then I identified right as the comprehensive presentation of legal phenomena such as jural right, freedom, liberty, privilege, and immunity, etc. where individuals are the subjects, meanwhile identified power as the comprehensive presentation of legal phenomena such as jural power, function, authority, competence, privilege, immunity, etc. where public agencies are the subjects, and then I developed my thesis in the following three steps: 1. Justified that right and power both embody legally recognized and protected interest, and are undifferentiated entities on the level of interest; 2. Justified that right and power are both ultimately forms of legal existence of property with defined ownership, and are also undifferentiated entities on this level; 3. Placed into one single term the common interest attributes and property attributes extracted from the comprehensive presentation of right and power, which forms the abstract concept of Faquan; and finally, based on the concept of Faquan, the reasoning concrete was elevated that reflects objective phenomena and is constituted of right, power, quan in its totality, residual quan as well as other secondary concepts, thus elaborating the entire categorical system of jurisprudence. In this way, I was able to logically justify that right and power are fundamentally a unified jurisprudential entity, although they have various differences and contradictions on the surface.
It was for me an extremely arduous intellectual leap to form and justify the existence of Faquan, or the unity of right and power. Afterwards, I found that the road of legal studies was no longer as treacherous, because, once the concept of Faquan was established, and once an interpretation system of legal phenomena was formed based on Faquan as the core concept of legal studies, the characteristics and internal and external connections of the realm of legal phenomena became objectively reflected with unprecedented accuracy.
Faquanism appeared towards the end of the 20th Century, when the background and the structure of legal research in China were still relatively unsophisticated. While there were some textbooks and works of legal studies published in China before 1949, they were already hard to find in the 1990s. Beginning from the implementation of reform and opening policy, many legal works from the West were copied or translated into Chinese, but they had rather limited influence because they were not in tune with the Chinese tradition of legal culture and the mainstream political ideology. What was truly influential during that period was the legal works of the Soviet Union translated into Chinese in the 1950s, 1980s, and 1990s, representative of which were the textbooks addressing the issues of state and law with Marxist theory and methodology, and whose content mainly includes the following: the concept, origin, and function of state and law, the historical evolution of state and legal systems, the legal systems of the contemporary world, state systems, state functions, state agencies, principles of power allocation, law and other social regulatory systems, the origin of law, codification of law, legal systems, legal norms, legal relations, the realization of law, the interpretation of law, legal act, and legal responsibilities, etc.
Between 1956 and 1978, the content of legal education in China was extremely poor, which was mostly political ideology concerning class struggle and continuing revolution under the proletarian dictatorship, with a limited number of legal terms. That was because state legislative activities ceased to exist, most law schools were either closed or unable to have normal enrollment, and there were continuous and incessant political movements. Law schools in China did not resume enrollment and legal instruction until 1978, and up to the end of the 1990s, in terms of the content of the textbooks, Chinese jurisprudence in that period was actually a mixture of Chinese legal studies before 1949, legal studies of the former Soviet Union, and some basic elements of contemporary Western legal studies, put together according to the guiding principles of the state that were stipulated by the Chinese constitution. In this book, such a mixture is called right-duty jurisprudence, because its basic propositions remain the same as those of right-duty jurisprudence and right-centric theory that were already popular in the field of Chinese legal studies in the first half of the 20th Century.
Faquanism as discussed in this book has largely been formulated and demonstrated in the process of critiquing right-duty jurisprudence. Scholars in the camp of right-duty jurisprudence have published some in-depth discussions, and I in turn have had rather comprehensive responses in timely fashion. Like many readers, I have sincerely hoped that scholars in the camp of right-duty jurisprudence would respond systematically to my critique, but unfortunately there have been no further reactions from their end. Such condition no doubt has prevented faquanism from reaching its rightful scope and depth.
In 2001, the center of my academic activities moved from Wuhan to Shanghai, and my research started to focus more on constitutional studies than jurisprudence, but my real academic interest remained to be perfecting and promoting faquanism. The idea of writing a monograph systematically discussing faquanism based on my already published papers was born in early 2014. The real impetus then was to make faquanism a major project under the National Social Science Fund of China, and to use it as a starting point to push for further research into the project. As a result, I was able to delve deeper into research of basic legal phenomena based on existing material, and to greatly expand faquanism, and completed the first draft of this book in Chinese by the end of 2015. But, unfortunately, the publishing house discontinued its cooperation with me for causes unrelated to scholarship.
It is fortunate for me, however, that Professor Chen Jianfu of La Trobe University, Australia, the Chinese law specialist well-known in the English-speaking world, contacted me around the time, offering to include this book in a book series edited by him. He is a fellow of the Australian Academy of the Humanities (AHA) and the Australian Academy of Law (AAL), and is highly insightful and creative in the field of philosophy of law. I have received his tireless assistance during the entire process of preparing for the publication of this book, including topic selection, press coordination, proof-reading, and finalization of manuscript, etc.
The most crucial step for this book, however, is to produce an English text. Here, I am again fortunate that Professor Xu Ping of the City University of New York kindly agreed to be my collaborator. Three decades ago, we both taught at Wuhan University, and were neighbors and close friends. Our coordination can be described as seamless in producing the English text for this book. Professor Xu is a language and literature expert, with excellent command of both Chinese and English. And what is admirable about him is that, for all these years, he has remained highly interested in the project of establishing democracy and the rule of law in China, as well as in the mechanisms of the U.S. political system, and is rather familiar with relevant legal documents, terms, and theories. As for myself, although not a language talent, I spent substantial time on learning English in my early years, therefore am capable of comprehending the language and appreciating the quality of an English text. During the process of translation, Professor Xu has not only produced an English text that is of high fidelity, accuracy, and elegance, but also offered many invaluable suggestions related to legal studies. At the same time, in terms of professional English expressions of legal content, I have also had extensive discussions with Professor Xu to the best of my ability.
What particularly touches me is that, Professor Jerome A. Cohen, a highly respected mentor and expert in the field of Chinese law research in the English-speaking world, found time to read the entire manuscript in the midst of pressing affairs, and enthusiastically wrote the Forward for the book, with full recognition of the content of the book and my academic pursuit. I remember that I came to know Professor Cohen in 2002 through my classmate and good friend, Dr. Daniel Yu, and since then Professor Cohen has supported and helped me on multiple occasions. As Confucius said, “gentlemen seek harmony, not uniformity.” There are apparent differences between Professor Cohen and I with regard to the standpoint and method in dealing with issues in Chinese law, but the obvious consensus we both share is the wish that the rule of law becomes reality in China as early as possible. Here I would also like to inform him, beginning in the spring of 2018, the Chinese publishing house has resumed its cooperation with me after adequate consultations, and it is hopeful that this book could soon be published in simplified Chinese characters.
The publication of this book has also benefited from the full support of my research assistant, Dr. Sun Ping. The original manuscript contains large quantity of quotations from the Chinese translations of Western works, and he is the one who located the source of corresponding books in the original language and replaced the Chinese quotations with the original ones, which was very time-consuming. My PhD student, Zhao Haijun, who completed his undergraduate degree in English language, also utilized his knowledge in proof-reading the English text against the Chinese manuscript and offered many quality suggestions. My MA student, Zhou Chengjian, assisted in producing the Index.
My classmate, Dr. Lu Deshan, who is now a well-established attorney, offered me his generous support in the process of writing this book.
Professor Zhang Lihong, a colleague and friend of mine, also gave me his invaluable assistance with the use of Latin terms and the nomenclature of the newly-developed jurisprudential entity.
I also would like to thank Ms. Stephanie Falconer of La Trobe University Law School for her final proofreading of the manuscripts.
In terms of the content, this book appears to be a product of pure philosophizing effort. Actually, it is not, as it is, to a great degree, a comprehensive presentation formulated by a researcher of legal studies who starts from the reality of his own country, adjusts to its basic condition, and gazes into the vast world. Now, reflecting on the process of writing this book, I would also like to thank the Law School of Wuhan University and the Law School of Zhongnan University of Economics and Law where I studied or worked earlier, the Center for Chinese Legal Studies of Columbia University, Paris Institute of Political Studies, the Law School of the University of Washington at St. Louis, the Center for East Asian Research at Harvard Law School, as well as the libraries of these institutions where I served as a visiting scholar. During the time when I studied and worked at the institutions, I was able to first formulate and initially prove some of the conjectures contained in this book, and then deepen and enrich my existing research, thus reviewing, revising or confirming my original conclusions with a much broader perspective.
I would like to extend my sincere gratitude to all these teachers, colleagues, friends, and institutions that have helped me in making this book a reality.