The research on the practice of rule of law in China has focused on three areas: target, structure and methods. However, most of the existing research is limited to a certain area. If the practice of rule of law is to be regarded as an integral and institutionalized systematic behavior, then a coherent methodological framework will be required to provide a scheme which combines theory with practice. Experimentalist governance, an emerging theory, may offer an adequate answer to this question. The theory of experimentalist governance is an alternative scheme for the traditional “command-control” model of governance. It has four steps: (1) central departments, local authorities and external stakeholders jointly establish temporary framework goals and evaluation criteria; (2) local authorities are given broad discretion to achieve these goals in their own ways; (3) the discretion acts on the premise that local authorities must report regularly and make peer reviews on the methods they use to achieve the same goal; and (4) the goals, metrics, and decision-making procedures themselves are periodically revised in response to the results of the review process. This way of governance has three outstanding merits: (1) it is adaptable to diversity; (2) it provides a mechanism of collaborative learning from local experience; and (3) the target itself and the way to achieve it can be corrected in the next cycle. China has met the basic requirements for the experimentalist governance model. From a longitudinal perspective, China has formed a tradition of experimental governance in the process of revolution and construction. From a lateral perspective, China's local autonomy and initiative have been continuously improving. The local practice and experiment gave birth to China practical school of rule of law, for experimentation is one of its core methodologies. The school proposes that the goals, structures and methods of a practice system of rule of law should be reconstructed from the experimentalist perspective. In terms of the purpose of rule of law, dogmatic theories should be replaced by framework goals. There are three existing theories on the values of rule of law: the rights theory, the utilitarian theory and the order theory. Experimentalism opposes a unified theory and the establishment of a static objective of rule of law, but calls for the establishment of temporary and modifiable framework goals. In terms of the body structure of rule of law, the dominant structure in China is hierarchic and departmental. Experimentalism requires a network relationship between the central government and local government, i.e., the two can compete with and learn from each other, with the central government functioning as a platform of policy transfer. In terms of the practice of rule of law, the assessment of rule of law should be regarded as the key one in the experimentalist system to evaluate regional differences in practice and to facilitate learning-oriented decision-making. The idea of experimentalist rule of law needs continuous improvement, but it will surely provide some theoretical impetus for the rule of law with Chinese characteristics.
钱弘道 杜维超. 论实验主义法治——中国法治实践学派的一种方法论进路[J]. 浙江大学学报(人文社会科学版), 2015, 1(6): 6-.
Qian Hongdao Du Weichao. On Experimentalism Rule of Law:A Methodological Approach ofChina Practical School of Rule of Law. JOURNAL OF ZHEJIANG UNIVERSITY, 2015, 1(6): 6-.