The Things Lady Justice Tells us Rule of

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

Origin of Law • • • Plato —The Public Socrates/Aristotle Law of nature— the only criterion Law and morality Any other example?

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

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

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

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

Blindfold • Since the 15 th 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 the scale in the other, but with her eyes uncovered. Justitia was only commonly represented as "blind" since about the end of the 15 th 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).

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.

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

Differences between Formal Justice &Substantial. Justice • • • Equal—平等 Impartiality—不偏不倚 Justice—正义 The final goal—substantial justice The solution—formal justice

• 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。

• 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。

• 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

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?

• 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)

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

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

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

What do people do with law? 1. practice law(实践法律)：work as a lawyer/judge/prosecutor 2. Legislation—lagislature Ø Legislature： • NPC and its standing committee • the State Council • Other legislatures continue

中华人民共和国《立法法》 Law of the People's Republic of China on Legislation - 2000 (Adopted by the 3 rd Session of the Ninth National People's Congress on March 15, 2000, promulgated by Order No. 31 of the President of the People's Republic of China on March 15, 2000, and effective from July 1, 2000. )

Article 7 The National People's Congress and the Standing Committee of the National People's Congress exercise the state authority of legislation. The National People's Congress enacts and amends basic criminal, civil and state structure laws and other basic laws. The Standing Committee of the National People's Congress enacts and amends laws other than those that shall be enacted by the National People's Congress; and makes partial supplement and amendment to laws enacted by the National People's Congress when the National People's Congress is not in the session, however, such supplement and amendment may not contradict the basic principles of laws concerned.

Article 8 The following matters have no alternative but to enact laws: 1. matters concerning state sovereignty; 2. the formation, organization, functions and powers of people's congresses, people's governments, people's courts and people's procuratorates at various levels; 3. the national regional autonomy system, special administrative region system and grass-roots mass autonomy system; 4. crimes and punishments; 5. compulsory measures and penalties such as deprivation of citizens' political rights and restrictions on personal freedom; 6. acquisition of non-state-owned property; 7. the basic civil system; 8. basic economic system and basic systems on finance, taxation, customs, banking and foreign trade; 9. procedural and arbitral systems; and 10. other matters on which the National People's Congress and its Standing Committee must enact laws.

Article 9 If no law has been enacted on a matter set forth in Article 8 of this Law, the National People's Congress and its Standing Committee are entitled to make the decision to authorize that the State Council may, according to the actual needs, formulate the administrative regulations first, except for the matters concerning crimes and punishments, compulsory measures and penalties such as deprivation of citizens' political rights and restrictions on personal freedom and judicial system.

Article 63 Under the pretext of not contradicting the Constitution, laws and administrative regulations, the people's congresses and their standing committees of provinces, autonomous regions and municipalities directly under the Central Government may formulate local regulations in accordance with the specific conditions and actual needs of their respective administrative areas. Large city as the term is used in this Law means a city where the people's government of a province or an autonomous region is located, a city where a special economic zone is located or a larger city approved by the State Council. (49 in all)

Article 71 In accordance with laws and the State Council's administrative regulations, decisions and decrees, the State Council's ministries, commissions, the People's Bank of China, the National Audit Office and the organs directly under the State Council with administrative functions may formulate the rules within the limits of competence of their own departments. Matters on which department rules are formulated shall be the matters for implementing laws or the State Council's administrative regulations, decisions and decrees.

Article 73 The people's governments of provinces, autonomous regions, municipalities directly under the Central Government and larger cities may formulate the rules in accordance with laws, administrative regulations and local regulations of provinces, autonomous regions and municipalities directly under the Central Government.

conclusion • Laws—NPC and its standing committee • Administrative regulations –the state council(国务院) • local regulations—some local people’s congress and its standing committee • Rules—ministries and some local governments • Legal validity(法律效力)？

Which law to apply? l law at the same status Ø New ＞old Ø special＞general Ø New special v. s old general: the legislature l Law at different status：

3. Legal Interpretation(legally effective) Ø Legislative Interpretation Article 42 The right to interpret laws is vested in the Standing Committee of the National People's Congress. Ø Judicial Interpretation ü The Supreme People’s Court ü The Supreme People’s Procuratorate

Legal System • Two legal systems in today’s world—civil law system and common law system • Civil law system—follow the legal pattern of ancient Rome, written law, Germany and France, PRC • Common law system—case law(precedent), USA and UK, HK

The development of Equity • 12 th century-14 th century The trial is based on the conscious of the defendant and natural justice (law of nature). Common law is lack of flexibility, king is the judge. The king authorize the great judges to try to case as his attorney.

• 15 th century-18 th century The court of equity emerged and the judges in the court of equity are not bound by common law. They developed their own Principles. • 1873~1875 The court of equity was abolished, common law and equity law merged. But as long as the law especially stated, equity law prevails.

Assignment Pick one legal proverb and share your understanding of it with the whole class next week. Ø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 Ø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

Thank you！