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The Things Lady Justice Tells us Rule of Law & Some law theories.

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1 The Things Lady Justice Tells us Rule of Law & Some law theories

2 Talking about law… What’s the first word come into your mind? Justice/fairness Equality Impartial To conclude… 刑也,平之如水。

3 Who is Lady Justice ? Tyche Fortuna (罗马神话中命运女神) Nemesis (复仇女神)

4 What do you see? blindfold (impartial) scales (weighing) sword (power)

5 Legislative Council Building, Central, Hong Kong) Shelby County Courthouse, Memphis, Tennessee, USA

6 The Central Criminal Court or Old Bailey, London, UK Sculpture of Lady Justice on the Gerechtigkeitsbrunnen in Frankfurt, Germany

7 Blindfold Since the 15th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents objectivity, in that justice is or should be meted out objectively, without fear or favor, regardless of identity, money, power, or weakness; blind justice and impartiality. The earliest Roman coins depicted Justitia with the sword in one hand and the scale in the other, but with her eyes uncovered. Justitia was only commonly represented as "blind" since about the end of the 15th century. The first known representation of blind Justice is Hans Gieng's 1543 statue on the Gerechtigkeitsbrunnen (Fountain of Justice) in Berne( 瑞士首都伯尔尼 ).

8 Scales Instead of using the Janus approach, many sculptures simply leave out the blindfold altogether. For example, atop the Old Bailey courthouse in London, a statue of Lady Justice stands without a blindfold; the courthouse brochures explain that this is because Lady Justice was originally not blindfolded, and because her “maidenly form” is supposed to guarantee her impartiality which renders the blindfold redundant. Another variation is to depict a blindfolded Lady Justice as a human scale, weighing competing claims in each hand. An example of this can be seen at the Shelby County Courthouse in Memphis, Tennessee.

9 What does it represent? Lady Justice is the symbol of the judiciary. The goddess is equipped with three symbols of rule of law:  a sword symbolizing the court's coercive power(DR);  scales representing the weighing of competing claims;  and a blindfold indicating impartiality.

10 What are the differences here? Equal— 平等 Impartial— 不偏不倚 Justice— 正义

11 Equality:If different groups of people have equal rights or are given equal treatment, they have the same rights or are treated the same as each other, however different they are. It emphasize the legal status of both parties.It is the basis to substantial justice. e.g. the principle of reasonableness ( 合理 行政原则 ) :行政机关应平等对待当事人, 不歧视。

12 Impartiality stresses the procedural justice—procedural law:code of criminal procedure/Law of Civil Procedure/Administrative Procedural Law e.g. 公安机关拘留时必须出示拘留证。紧急 情况下可以不要拘留证。

13 Justice is one of the most important value persued by law,it is the primary standard of law as well as the motive power of law—the relationship between law and virtue:school of natural law(Lex injusta non est lex )/the positivist school E.g.real-name registration system

14 亚里士多德说, 法治是良法之治。 孟德斯鸠说:有两种坏现象, 一种是人民不 遵守法律 ; 另一种是法律本身使人民变坏。 后一种祸害是无可救药的, 因为药物本身就 包含这种祸害。 An offcial must be bad v.s.one must be bad to be an offical—which is worse?

15 Is impartiality the only value persued by law? Basic values: Freedom Justice Order Nonbasic values: Benefit/interest efficiency

16 Freedom is the nature of law and the supreme goal of law.Why?Because it is the basic need of human nature. Chapter Two:The Fundamental Rights and Duties of Citizens— 政治权利和自由(言论自由, 政治自由)、宗教信仰自由、人身自由(住宅不 受侵犯、通信自由等等) Law protects freedom by impose restrictions on freedom.Can you give an example?

17 Order:in accordance with common sense and is more about procedure rather than materiality. Which goes first? Freedom > Justice > Order When the superior value goes first,it may infringe upon an inferior value,but there must be a limitation. 1.principle of presumable innocence 2.“ 戒严期间,国家可以在戒严地区实行通讯 管制 ” 。

18 The reflection in Civil Law 1.The Fairness Doctrine( 公平原则 ) GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE S REPUBLIC OF CHINA Article 4 2.Principle of Social Ethnics( 公序良俗原则 ) GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE S REPUBLIC OF CHINA Article 6

19 What’s the essence of rule of law? Rule of law( 法治 ) Rule by man (人治) What’s the fundamental difference between these two terms?

20 The meaning of Rule by Man Tang & Song Dynasty written law customary law:imperial order( 敕 )—superior to laws TangLuShuYi--Confucian moral codes TangLiuDian—Oldest Administrative Law Who made the laws ? the ruling class Evil Law is Law

21 The theory of “rule of law” in Criminal Law The principle of legality( 罪刑法定原则 ) 1.No law does not expressly provided for the crime. 法无明文规定不为罪。 2.No penalty without law making it so. 法无明文规定不处罚。

22 If we say “all the rule of law come down to rule by man”,how could you explain it with dialectical thinking mode?( 辩证思维模式 )

23 Rule by man With limitation(Democracy) Without limitation(Despotism ['despətizəm] ) rule of virtue&rule of law virtue and law are not binding

24 virtue and law Differences ? Relation ? Rule of law is the last line of defense of rule of virtue. Without law,virtue can’t be enforced. Without virtue,law will be overwhelmed.

25 Ancient Chinese Law The ancient Chinese national administration experienced from rule by rites( 礼治 ), to rule by law and then to rule mainly by virtue with penalty as assistance. “bright virtue and careful punishment” (明 德慎刑) “rule of morality with its priority to penalty” (德主刑辅)

26 The essence of Rule of Law Criminal Law of the People's Republic of China Who’s the legislature? NPC(standing Committe) lex injusta non est lex ( 恶法非法 ) Democracy & Human Rights

27 Why law is necessary in a society? Guidance:what should I do? Evaluation:what he does means… Education:everyone in the society Prediction:the relationship between you and me Enforcement : observe the law

28 Discussion 1.Where could you find the statue of Lady Justice? –do research online 2.What do you think is the essence of rule of law? 3.What’s the biggest difference between rule of law and rule by man? 4.Do you think the spirit of law is important in modern society?Why or why not?

29 Assignment 1.Can you find the provisions which embody the theory of “rule of law”in other department laws? 2.Finding one or two legal proverbs and share your understanding of them with the whole class next week.  公正不是德性的一个部分, 而是整个德性 ; 相反, 不公正也不是邪恶的 一个部分, 而是整个邪恶. 。 — 【 Ancient Greek 】 Aristotle  只要法律不再有力量,一切合法的东西也都不会再有力量。 — Rousseau Social Contract

30 Thank you !


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