Some Notes on Horwitz
Nov 8th, 2006 by guo rui
Horwitz talked about “[I]n most general historical studies, fields like torts and contracts… are treated as if they stand apart from content or policy”.
I feel that many Chinese legal scholars are doing exactly what Horwitz criticized. Only, they do it in bad faith (or intentionally, or with contextualized wisdom, whatever), while historians that Horwitz criticized may be genuinely ignorant (it may be true).
Chinese scholars know the opposite opinion, which has long dominated the academia ever since 1949. Such opinion, from Marxism ideology, treats law as part of the state machine, which means the sovereignty could do any change as it wishes. Therefore the prosecutor’s office as well as the court became so-called “sword of the government” with ther major responsibility to help the policy maker maitain the stability of society.
Those scholars who wanted to say no sometimes to the policy maker, namely the communist party, have to insist the independence of law, so that judges may exclude blunt political influence to some limited extent. If they would rather embrace the idea that law can not be independent from policy, when they want to do say no, they have to justify why another policy is better, which ultimately will lead to a different political comittment. It will cause trouble for themselves, either now or in the Mao-era. Therefore, it was the mind control that led to the idea law shall and can be independent from policy.