Social Sciences in China (Chinese Edition)

No.9, 2018

The Construction and Interpretation of Fundamental Legal Concepts—With a Focus on the Relations between Right and Power

(Abstract)

Liu Yang

Fundamental legal concepts can be identified empirically, but they need to be justified logically. In the Chinese jurisprudential discourse system, fundamental legal concepts should be defined and expressed as follows: right, duty, no-right, noduty, power, liability, no power, no liability, and their relationships should be specified as relations of external negation, correlative relations and classificatory relations. The formal derivation of fundamental legal concepts can be achieved by integrating Hohfeld’s theory and logical methods, while their substantive construction needs to fill the gaps in Hohfeld’s theory and ground fundamental legal concepts on a certain view of law. Given the mutually interpretive relations between legal approaches and particular types of legal norm, legal norms, as carriers of concepts in the “right”and “power” groups, can be classified in terms of legal conceptsas two sets of rules. The theory of the object of right, and especially the fact that the rights therein can become objects of right, lays a foundation for interpreting the relations between right and power. In structural terms, right and power have a nested relationship; in terms of properties, their relationship is one of contradiction; functionally, it is one of means and ends; in terms of amount, it is one of equivalence; and in terms of logic, it is one of mutual priority. As the fulcrum of fundamental legal concepts, the twofold right/power construction has not only inspired theories relating to types and concepts of right but also provided modern jurisprudence with an interpretation of second order construction of the concept of law, the legal system or legal order. Its theory of practice rests on the fact that it offers a micro-mechanism shared by all forms of governance.