Modern academic researches on Chinese traditional jurisprudence mainly focus on its history of thoughts and history of systems, which basically helps people understand many details of the subject, but lacks a philosophical perspective in a deep sense, not speaking of constructing an independent modern Chinese jurisprudence deducted from the traditional one. To better utilize the resources of Chinese traditional jurisprudence and enhance the confidence of modern Chinese theories, it is necessary to interpret the traditional jurisprudence from a new perspective of practical rationality, which will be of great help to the forming of a new practical view on the rule of law. The traditional Chinese jurisprudence finds its roots in legal practice, and it is under the premise of ″practice″ that the jurisprudential thoughts were born. Like all other traditional thoughts, Chinese traditional jurisprudence does not aim at building a systematic theory, but rather, to solve the problems in reality. Therefore, it is a legal thought based on practical rationality rather than scientific rationality, and it pursues a rational way of problem solution rather than an objective standard answer. The theoretical direction and aim of thoughts of the traditional jurisprudence are mainly found in the Confucian jurisprudence and orthodox jurisprudence. What should be noticed is that ″practice″ here does not simply refer to ″activities,″ because not all ″activities″ can be called ″practices.″ Only those activities with goodness as their purposes can be called ″practices,″ while in China the good purposefulness is based on the Confucian value system favored by the society. The practical style of the Chinese traditional jurisprudence features not only the pursuit of goodness, but also the dimension of practical wisdom, the latter of which is the best quality of the traditional legal practices. The Chinese traditional jurisprudence serves as a cultural premise of modern China practical school of rule of law. China practical school of rule of law opposes designing its development path from the text, but advocates that the rule of law is an action, believing that only through continuous actions can we realize the rule of law in a real sense. The rule of law is just like an open game—people learn to play the game through practices. To create the rule of law through actions should become the guideline of China practical school of rule of law. At the same time, it should also be the basic way to build the rule of law in modern China. It is an important topic to interpret the Chinese traditional jurisprudence in a modern way, and the theoretical interpretation from the practical philosophical perspective is endless. The research done here is only a small start. People will reach a consensus in theory as they deepen their understanding of this topic. Also, it is of great significance to dig out the resources of the traditional jurisprudence and cultivate the theory confidence among the jurisprudence circle of modern China.
China has formed its own road of the rule of law, which is the road of socialism with Chinese characteristics. The road of the rule of law in China is the part of the socialism with Chinese characteristics and is guided by it, which is inherited from the historical and traditional culture of China. Chinese culture, contains harmonious culture, pacifism, moderation and temperance attitudes, not only affects the law and the rule of law in China, but also determines its development of the road of the rule by law. Chinese legal development path, in a sense, represents the direction of the development of the rule of law of humans, which was formed in the exploration of the rule of law after the founding of New China, especially since the reform and opening up. Chinese legal development path is fully reflected in the Property Law, Land Law, Financial Law and other legal regimes, which fully exemplifies the distinctive characteristic socialism of China. And the Chinese legal development path was formed in the exploration of the practice of the rule of law in China, such as the practice of legislative, executive, judicial reform, the index of the rule of law, the transparency index of judicial, and the index of e-government carried out in the recent years. The formation of Chinese development road will promote the appearance of distinctive theory of the rule of law and the Chinese legal practice school. The practice of the rule of law is the theory source of Chinese legal theory, and the Chinese legal theory is the description of Chinese practice of rule of law. The aim of China practical school of rule of law is to offer an academic elaboration and theoretical generalization about the road of Chinese rule of law development. It takes the socialism with Chinese characteristics as the guiding ideology, sums up the Chinese legal history and practice of rule of law, then initiates the Chinese legal development path in the international perspective, and brings about a new universal significant success of the rule of law for human beings.
Legitimacy is not something distinct from power|it is a vital source of power. And since power politics plays a key role in the nature and development of international orders, the politics of legitimacy can be expected to have featured prominently in the construction, maintenance, and collapse of such orders. This article begins by exploring the concepts of power and legitimacy, their theoretical and practical interconnection, and the impact that the politics of legitimacy has on the constitution and distribution of political power. For many international relations scholars, power flows directly from material capabilities. Yet history is full of examples where actors with considerable material capabilities have not been able to realize their interests or control political outcomes. There is much more to power, therefore, than meets the eye. As Max Weber understood it, all political power rests on perceptions of legitimacy as much as material capability. Indeed, power that rests on nothing more than material capabilities is inherently unstable. Power thus has multiple sources, material and non-material, and legitimacy is as essential to power as guns and money. The key thing to note, however, is that legitimacy is an inherently social phenomenon|an actor's identity or behavior isonly legitimate when judged so by others. Furthermore, while material capabilities are clearly important sources of political power, they do not, on their own, generate legitimacy. Others can judge a materially powerful actor in a variety of ways: they can judge it and its actions to be legitimate, or they can see it as threatening. Material capabilities have no inherent meanings. For a materially strong actor to be judged legitimate, its identity and actions have to be seen as consistent with social norms and values that others consider important. Having set out this theoretical and conceptual framework, the article takes an empirical turn, examining two ways in which the politics of legitimacy has affected the nature and development of the modern international order. I define international orders assystemic configurations of political authority , as historically contingent, normatively sanctioned ways of distributing legitimate political power. In some international orders, like the present one, political authority is organized according to the principle of sovereignty: the system is divided into multiple territorially demarcated units of centralized authority. In other orders, legitimate power has been distributed according to different principles: heteronomy, empire, suzerainty, etc. Europe's medieval order is an example of heteronomy, the classic Chinese world order was a case of suzerainty. I am interested here in two institutional characteristics of the present international order and how they have been shaped by the politics of legitimacy. The first concerns its global nature, the fact that for the first time in world history the sovereign state is the sole legitimate form of political organization, and virtually the entire surface of the globe is divided into the patchwork of such states. Sovereignty has become the universal organizing principle, although this is a strikingly new development, realized fully only in the last 50 years. The second concerns one of the fundamental institutional practices of the contemporary order: the definition and allocation of special responsibilities to particular sovereign states. All international orders develop fundamental institutions to facilitate coexistence and collaboration between political units. Hedley Bull famously listed the institutions of the modern international order as international law, diplomacy, the balance of power, war, and management by the great powers. It is the last of these that interests me here, as such management is one expression of the notion that in a world of legally equal sovereigns some actors can, and should, be allocated differential responsibilities for the provision of certain international goods. If my first concern relates to the universalization of sovereign equality, the second concerns the institutionalization of hierarchy within such equality. The politics of legitimacy has been central to the development of both of these features of the modern international order. Until the second half of the twentieth century, the conjoined principles of sovereignty and empire structured political life on the globe. Over the course of five centuries, individual empires fragmented into successor sovereign states, and after 1945 the institution of empire itself collapsed. Crises of institutional legitimacy drove each of these processes crises that occurred when imperial hierarchy was challenged by the emergence and mobilization of new ideas about individual rights. The resulting universalization of sovereignty has produced a legally equalitarian international order, in which all sovereign units have the same legal standing and the same array of legal entitlements. Yet as this order has developed, more or less formal types of hierarchy have also emerged, the most notable being the distribution of special responsibilities to particular actors, principally great powers. Not surprisingly, the definition and allocation of such responsibilities has been a focal point for the politics of legitimacy. Special responsibilities are legitimate social powers: they are rights or obligations to exercise a state's capabilities, or refrain from doing so, in the service of international social ends: order, economic well-being, humanitarianism, environmental protection, etc. In the complex international order, however, this politics is immensely complex, as special responsibilities are defined and distributed differently in different issue-areas.
The core suggestion of this article is that we make best sense of the concepts of power, legitimacy, and responsibility within a framework of international society. However, to do so effectively we need also to think about international society in a distinctive way. This concept thus becomes the key framing device of the discussion and in this way the article takes further the author’s recent attempts to contribute to a revision of English School theory. This framework is illustrated by, and applied to, the specific case of China’s rise. It is exactly the material rise of China that is believed now to render suspect assumptions about the continuing normative stability of international society. For those reasons, any putative normative accommodation between China and international society represents a particularly fascinating case study of the theoretical problem in general. Accordingly, and in the light of its historical background, China faces a major paradox. Seemingly, the prerequisite for it to exercise greater influence on the norms of international society is yet further assimilation into them: in order to become a respected norm maker, China must first be seen to be fully integrated as an appropriate norm taker. This is the nub of the dilemma, as it is widely perceived in the literature. To be in a position to influence the norms of international society, it must seemingly firstly resolve any lingering ambiguities about its membership. In short, should the debates about China’s status be understood as an expression of the power of norms (where China is assessed relative to some universal standard of responsibility), or are they better viewed as the deployment of the norms of power in such a way as to impact its social distribution to China’s disadvantage (by imposing the self-interested standards of the liberal states)? The heart of this debate about China’s responsibility can then be seen as one, less about the roles that it actually plays at the moment (within an already existing framework of normative expectations), and instead more about the kinds of putative qualities that need to be displayed (within a revised normative framework) to fit it for undertaking specified future roles. What insight does an international society approach bring to this much-debated topic? Building on the work already undertaken by Chinese scholars in this field, the article demonstrates that the general theoretical issue concerns the relative potency of the power of norms versus the norms of power. Specifically in relation to China, the question is then about whether international society’s norms are constraining China’s power, or whether we should expect to see these norms transformed in proportion to China’s new international roles. Neither the power of norms nor the norms of power, however, is likely to issue in any pure and absolute form: international society is a much more variegated normative terrain than either of these two perfect outcomes would suggest. Instead we will undoubtedly face the messy middle ground. The paradox is that the more successfully does China pass the first test of ‘responsibility’ as presently conceived, and thereby alleviate concerns about its ambivalent membership, seemingly the less leeway remains to act as any source of normative transformation. This leaves an unresolved tension in China’s relationship with international society, insofar as its socialization within current norms as presently configured might be corrosive of its social power in the interim, and hence undermine its effectiveness as a norm maker in the future. The teasing question remains nonetheless exactly how that society’s operative norms evolve, and whether they do so as part of some relatively autonomous process of development, or mostly in reflection of the normative preferences of the most powerful states. This problem palpably emerges during any period of "power transition": how is China to become fully compliant with an ‘alien’ normative structure, without thereby losing any scope to press for its future modification? What must be stressed at this point is that there is a profound confusion in any suggestion that the trajectory of international norms follows slavishly from shifts in the distribution of power, as if the latter were entirely devoid of all normative content. To the extent that the latter includes – as it assuredly must - a measure of social power, then international norms are already a fundamental part of it, not something set wholly apart. The notion that there is any straightforward causal relationship between the two is, for this reason, highly disingenuous and logically deeply flawed. Accordingly, it becomes readily apparent that power and legitimacy are not to be thought of as two wholly separate things: we should not conceive of power, on the one hand, as radically distinct from legitimacy, on the other. Instead, legitimacy is constitutive of social power. Once this association is understood, it becomes evident that power is not merely a material phenomenon. At the same time, it is not only that any powerful state or group of states is incapable of imposing its entire set of normative preferences upon international society but, in an even more deep-seated way, international society is unlikely ever to demonstrate the requisite degree of consistency and homogeneity that any such portrayal would seem to assume. In such a contested space, all powerful actors have to earn their varying degrees of respect and legitimacy, and are unable to command it at will. This very unruliness underscores the pluralistic character of international society and paradoxically makes the business of its practices of legitimacy all the more serious and arduous: it is the reason also why legitimacy matters so much, rather than any reason to dismiss it as irrelevant. The core puzzle then is to make sense of that fundamental tension between what international society enacts as an expression of a basic consensus amongst most of its members, and what it otherwise enacts in response mostly to its dominant players. In turn, this conception is specifically revealing because it suggests that finding space for China within its normative structure is not some unusual or exceptional event, but is rather a routine characteristic of the behaviour of international society. Continuous mutual adaptation and contestation within its diverse membership is how the norms of international society evolve and, to this extent, there is no static "it" that China seeks to join and to modify: both are remade in the same continuous process.
This article examines the relationship between the Security Council, legitimacy, and international law. The Council centralizes international political and military power to a degree that is unprecedented in global history, and in doing so it raises important questions about the relationship between law, politics, and power. The article considers first how the power of the Council is constructed by the legal framework set out in the UN Charter. This entails a close reading of the Charter and shows both how it centralizes the power of UN member states but also how it limits Council authority. The legal authority of the Council is important but it must be understood alongside other forces that may enhance, limit, or modify it. The second section of the article therefore examines how the Council’s power is influenced by two extra-legal forces: (1) perceptions of its legitimacy, and( 2) the interests of the permanent members. The Council has no practical power unless its legal authority is mobilized by the interests of powerful states and sustained by a sense of its legitimacy. The decision-rule in the Council ensures that no action can be taken without the support of the five permanent members. This is an institutional requirement that is set by the Charter. Alongside this, the Council equally rests on a sense of its legitimacy. This is an important source of power which has recently become the subject of much scholarly attention. Legitimacy is the belief of an agent that a ruler or institution has a right to be obeyed. It is a subjective perception, located in the beliefs of the actor. For the Security Council, this is exemplified by the widely shared sense that the Council is an important and appropriate player on international security issues. The position of the Council depends on its legitimacy -- and this is in the eyes of both the permanent members and the rank and file UN members. The Security Council is extremely powerful when the political conditions align with its legal framework. At such moments, it has unparalleled capacity to take decisive action in international politics. This was in evidence in 2011 when it authorized the military intervention that overthrew the Libyan government. When its members are politically united behind a course of action, the Council can mobilize legal and material resources almost without limit, and its legitimacy in the international system makes it immensely powerful. At such moments, it is reasonable to worry about the “imperial Council,” a body unchecked by other institutions and empowered by law and the control of resources to impose itself anywhere in the world. However, when its permanent members are not united, the Council falls into paralysis. Between empire and paralysis sits the Security Council in practice. The evidence in the article shows how difficult it is to apply the idea of the ‘rule of law’ to the operation of the Security Council, and indeed to apply it to international politics more generally. The rule of law is often used to describe the international system, either as it actually is or as an ideal which should be sought. This generally refers to the idea that international politics should take place within a framework of law. States might argue over the meaning and content of international law, but it is uncontroversial to maintain that international law exists and that it makes a contribution to international order. However, the relation between law and politics that exists in the Security Council shows how tenuous is this concept of the rule of law as it relates to international politics. It is difficult to clearly specify the content of the rules that bind the Council, as they shift under pressure from the practice of the Council. Some violations of the Charter are understood as informal amendments to it, and therefore as not violations at all. Others are held up as threats to international peace and security and therefore as authorizing enforcement action. The distinction between compliance and non-compliance with the law follows from state action, rather than standing independent of it as is expected by the theory of the rule of law. In conclusion, the political power of the Council in practice is a combination of the three forces at the center of this essay: international law in the Charter, perceptions of its legitimacy, and the interests of powerful states. Together, these mean that the Council may sometime act in ways that contradict the black-letter law of the Charter, while at others its adherence to the Charter leaves powerful actors dissatisfied. This ambiguity in the law and practice of the United Nations is inherent in the nature of the organization itself: it straddles the boundary between law and politics, and shows that the two categories cannot be neatly divided.
Abstract: Even though Habermas's original Public Sphere theory is derived from a western societal origin, it has been used recently as the primary tool to analyze the Chinese society and the issue of public opinion. This has sparked much debate in whether or not it is suitable to use such western theories to analyze the Chinese society. This paper attempts to address this issue first by conducting a conceptual analysis on the theory of public sphere as proposed by Hannah Arendt and Jürgen Habermas, and second, by proposing solutions to the problem in response to the debate about the use of western theory in such a Chinese context. Firstly this paper reviews Arendt's theoretical background. Arendt's introspection of the modernity crisis and liberal philosophy begins with her critique on totalitarianism, which inspired her to illuminate publicity in the political life as a core concept. She has established the subjectivity of humans, reflected and criticized the origin of totalitarianism which caused many catastrophes to humanity, and proposed the solution to the modern constitutional dilemma, the three of which jointly form the initial support for the public sphere theory. Habermas's theory of public sphere which is based on Arendt's theory bears many important factors that influence the modern society. These factors not only ensure the operability of mass democracy, but also represent a breakthrough on the societal institutional level. In this paper, we attempt to observe the theory in its original context in which Habermas developed it, in order to reach the core of the theory and discover the reason behind its development|we shall also state the various connotations of a public sphere respectively, including the public sphere as a historical category, the public sphere as a normative concept, the public sphere's political function and relevant issues about civil society. The late capitalist society gave rise to the public sphere theory, therefore it cannot be separated from the historical context of Europe|Habermas's use of intersubjectivity seeks the universality of understanding the theory, which provides a new validity in interpreting the public sphere as a normative concept|the introduction of both concepts ''publicity'' and ''public opinion'' gives Habermas's theory the implication of political function, leading the development of the theory to the theme of regime legitimacy and towards the legalization process of mass democracy|the two sides of ''modernity as an unfinished project,'' the civil society and the public sphere', are regarded by Habermas as the new base of developing discourse democracy. Secondly, this paper discusses the condition and the legitimacy of theory used as an ideal type, theoretical tool and academic discourse in the Chinese context. We tend to agree with the bold use of western public sphere theory, at the same time we stress that the social context must be taken into consideration when applying the public sphere/civil society theory and propose that the use of concept should not only lay stress on the historical content behind the concept, but also avoid restricting the view by the sole theoretical frame. In order to explore the greater value of theory, we offer a unique theoretical perspective that exceeds the theory of the public sphere in modern China by constructing a discourse space with the intension of practice to connect the individual, the society and the country. It is noted that the subjectivity of the great majority of Chinese people should be established and the Chinese people's general rights of expression should be guaranteed in the social life space|the publicity beyond the ''civil society'' and the way in which public approval is achieved in the discourse space should be explored|and the relationship between country and society should be reanalyzed.
This article uses the concept of Social-Ecological System to study systematically the external reasons of the development of the privately-run publishing industry in modern China. From the views of this article,within these few decades,what the industry had completed required its Western counterpart 200 years of history. Besides that it followed the laws of development of industries as its internal conditions, such as institutional building, internal administration, and operational principles, more importantly, it deeply investigated the Social-Ecological System, especially the external environment which supported its development, and this is also the main and creative argumentation in this article. Now China's publishing industry is following the requirements of industrial development, branching into cultural development, and keeping restoring its original characteristics as publishing industry. Hence, having deep knowledge of historical experience, and summarizing successes and failures is crucial for enlarging and strengthening China's press industry. There are mainly four external factors as stated below: Firstly, in modern China, the development of market economy, the strong commercial atmosphere, and the advancement of industrial technology (phototypography) combine to promote the transformation of the traditional publishing into the modern one, helping private publishing entrepreneurs gain a macro environmental support and modern techniques that are indispensable for industrial development. Secondly, the change of China's political situation after the Opium War forced Chinese Intellectuals to turn to Western countries in order to achieve national rejuvenation. Translating and introducing Western books was therefore the early method adopted to enlighten people and respond to their needs. After the collapse of Chinese traditional imperial examination system, the government advocated the New Educational and Library Movement, which became a direct factor contributing to the prosperity of the modern book market. Private publishing originated from government-run publishing and church publishing, and finally became the leading force of modern Chinese publishing industry. Thirdly, to satisfy people's growing demand for intellectual property protection and the market competition mainstay's request of establishing a fair and just competition environment, the government on the macroscopic level issued related laws and regulations for the protection of rights and interests of authors and publishing entities, setting up an environment with systems and policies to ensure the development and competition of the modern market. Fourthly, as the product of the development of commercial society, it represents the emergence of organizations of book industry by the folk force in the public field, which plays an important role in helping the government build a market of a just and fair competitive environment, regulating the operation of book industry, maintaining the order of the book market, improving the management environment, defending the rights and interests of publishing entities, striving for the freedom of publishing and the healthy development of publishing industry. In its game with the government, Self-organizing Theory has come into play in the development of private publishing industry in modern times. According to the requirements of modern business organizations and the dual nature of publishing enterprises, the main body of private publishing industry, particularly the Commercial Press and Zhonghua Book Company, has become an important part of modern Chinese capitalist industrial system, promoting the development of modern Chinese national industry. At the same time, a group of intellectuals in the publishing industry, such as Zhang Yuanji, Lubi Kui, and Wang Yunwu and others broke through the institutional barriers within the commitment to cultural and moral bottom line, created the healthy core ''system of life'' of the publishing industry's development, and took advantage of and built the Social-Ecological System which supported its sustained development.The combination of both promoted the modern transition of traditional Chinese culture, thereby completed the modernization of the modern publishing history.
In the newly unearthed documents, epitaphs of the Tang Dynasty make up the largest part. Familial factor is the most important aspect in the various characteristics of the epitaph. Therefore, to explore the relationships between familial factor of epitaph and biographical literature is an important subject in research on the newly unearthed epitaphs of the Tang Dynasty. If we combine the tomb owner and epitaph-writer to do some research, we can find that the close connection between the style attribute and the family property of the epitaph in the Tang Dynasty mainly represents three types of situations: The first type is written by the litterateur himself. This is a special type of biographical article, in which the author recounts his whereabouts, or traces his family, or expresses emotions or makes comments. The author's personality, psychology and literary grace can be represented as well. Therefore, this type of epitaphs not only reflects the essence of life itself, but also highlights the literary personality. Compared with the literature handed down from ancient times, the epitaph carved in stone mainly refers to the condition that the family background and life experience are written by the tomb owner, but some unpredictable things such as the funeral time and official position granted after death will still be filled by the author's family members or posterity later. Since the self-written epitaph is the biography which literati write for themselves, they lay emphasis on the shaping of their self-images instead of showing them off. It is well known that the self-written epitaph is an important genre of family literature, and in order to highlight the tomb's origin, the depiction about family narration naturally becomes an important part in the self-written epitaph. For the tomb owners, we can exactly know their origins. Meanwhile, for the literary form, it is necessary to use honorifics in an epitaph. In addition, people who write their own epitaphs mostly have a literary creation talent. And in the writing process, they describe the process of creation in detail, or place extra emphasis on the transformation road of literature. Consequently this kind of texts not only has the value of biographical literature, but also becomes a part of the literature history. The second type is written by family or clan members, which can reflect more characteristics of the family biography. As the epitaph is written by the family members, the narrations about family background are often more detailed than any other parts. This type of epitaphs has both similarities and differences in personality with those self-written ones or general epitaphs which usually narrate the owner's family background, especially in the women's epitaphs. The epitaphs written by family or clan members in the literature of the Tang dynasty such as the yang family, tsui family and wei family, are too numerous to enumerate. In this paper, neither elite nor ordinary family is regarded as the study object, but we choose the hus family, a second-class noble family of the Tang Dynasty, as an example to discuss the situation of epitaphs written by family members. For instance, the epitaph that Xu Jian wrote for his father Xu Qidan can be regarded as a classic work in literary autobiography. This article is written in the form of the rhythmical parallel prose. Besides, the narration and comments techniques are alternately used in the whole epitaph. Reading this epitaph, we can feel that it has a magnificent structure, a fantastic atmosphere and the elegant style that a great master should have. The third is a special kind of epitaph written between husband and wife. If we observe and study the epitaph-writer from the level of conjugal relation, we can find that the epitaph has characteristics of both family and marriage. But from the aspect of biographical literature, the writer pays more attention to the portrayal of the character and emotion expression. In the newly unearthed documents, there are plenty of epitaphs that husband writes for his wife. This kind of epitaphs often expresses very sincere feelings between husband and wife. Epitaphs written by the sincere emotion are very touching literary works, and should be the subject that can attract literary historians' attention. At the same time, these epitaphs also praise the wife's virtues and reach a high level on the moral values. Compared with the general authors who write epitaphs, it is comparatively seldomly seen that the husband writes epitaphs for his wife. Another situation that the wife writes epitaphs for her husband is even more rarely seen. But we can still find three such epitaphs, which are all concise and comprehensive masterpieces with sincere words.
Epitaph is of large quantities in Chinese ancient literature. Epitaphs represent not only biographical literature, it also provides materials for research in other academic fields. Therefore ancient epitaphs, especially newly unearthed ones, have always been paid great attention by scholars. But so far the origin of epitaphs and the establishment of the epitaph style are both controversial among scholars. It is an urgent task to probe into these two questions. The newly unearthed epitaphs and the great progress of the research on the evolvement of text style provide new empirical material and new perspective respectively for the analysis and clarification on these two matters. The first step to confirm the origin of epitaphs is to find the first appearance of ''epitaph，''which is generally agreed among the scholars studying on the epitaphs. After the investigation, it is found that the first piece of ''epitaph'' appeared as early as in the Eastern Han Dynasty, but its nature is the prisoner's tile epitaphs, rendering their relevance to the study in question. Even if the word of ''epitaph'' is used, it does not necessarily mean that that piece of work is ''epitaph'' in the real sense. Thus, the first step to investigate the origin of epitaphs is to establish the criteria of epitaphs based on the main functions of epitaphs. Based on the above statements, by concentrating around the newly unearthed stone inscriptions of Eastern Han Dynasty and referencing to other related records in ancient documents, this paper investigates the origin of epitaphs and the establishment of the epitaph style from a new perspective. Epitaphs originated in late Eastern Han Dynasty. Miao Yu's epitaph which was carved in the first year of Yuanjia (151) can be seen as an example of this first use of epitaphs. According to the ancient Tang records, Miao Xi (186-245) living in Cao Wei period was often regarded as the ancestor of the creation of epitaph. The earliest extant of epitaph created by literati was written by Fu Xuan (217-278) of Western Jin Dynasty. Therefore, we have reasons to believe that epitaphs with a definition of one literary style appeared as early as in the Wei and Jin Dynasties. The rapid development of the epitaphs style can be seen both in the Northern and Southern Dynasties. There were a large number of changes both in terms of the content and the form of epitaphs. As for the content, the notes and eulogy's function of the epitaph had been further emphasized. Not only the ''Thirteen things'' had been perfected, the content of the Mingwen also became more euphuistic and more elaborate. As for the form of the epitaph, the manner of writing became gradually stable and the order of its different parts with different content had been gradually stabilized. The epitaph also became more complete regarding its form. The phenomenon of increasing cooperation between writers of epitaphs among the Northern and Southern Dynasties represented the new changes with regard to the text form of the epitaph style. Before and after the sixth Century A.D, the writing manner and the text form of the epitaph style finally became standardized and was accepted and imitated by later authors. The changes in the epitaph creation in later times lied merely in addition and deletion of certain content under the names of specific epitaphs. The follow-up epitaphs can not be able to develop beyond the already fixed epitaph style paradigm established in the Northern and Southern Dynasties.
Under Chinese Copyright Law, it is widely held that the right of distribution applies only to “tangible” original or copies of a work, and thus there is no Internet distribution, no application of exhaustion doctrine in the network environment. Accordingly, online delivery of digital works is only subject to the right of communication to the public through network. This opinion, which originates from Europe, has already been explicitly rejected by the EU Court of Justice in the Usedsoft case. In fact, this conventional view is supported by neither national statutes (including Chinese Copyright Law) nor international treaties. It is the transfer of ownership in the original or copies that characterizes the right of distribution. This right should not be confused with the right of communication to the public through network. Their differences reside not in tangible or intangible medium where the work concerned is fixed. In essence, the right of distribution requires manifestation of intention on the part of the copyright holder or a person acting under his authorization to transfer the ownership of the copies. As a result, the purchasers of the copies may enjoy the content of the work of authorship for unlimited periods at their own choice of time and place. In contrast, the right of communication concerns itself with communication of the content of the work. The audience is supposed to enjoy the content of the work only when communication occurs. True, the audience may employ technical means to “fix” the work communicated to them. The copies so fixed and owned, however, are outside the copyright holder’s intention. Such fixing act infringes upon the right of reproduction if it is not exempted as “fair use.” Therefore, the intention manifested determines whether a given conduct is online distribution or online communication of works. Accordingly, the exhaustion doctrine should also apply to digital copies delivered through the Internet. Where the copyright holder or a person acting under his authorization sells a digital copy and delivers it to the buyer through the Internet, the right of distribution of the copy should be exhausted. The right holder may not interfere with the resale of the copy by the buyer who makes that copy unusable to him at the time of the resale. This is so even where the buyer sells the copy to a third party and delivers it also through the Internet. Honestly, the exhaustion doctrine traditionally applies to the particular copy sold to the buyer with the copyright holder’s consent. The particular material copy which the buyer obtained cannot transfer over the Internet, and a new material copy must be created for the third party as a result of the online delivery. There is reproduction without authorization. That reproduction, however, is necessary for the new lawful acquirer to use the work which he has purchased and thus should not be considered as infringement of the right of reproduction. The exhaustion doctrine so applied promotes competition and does not make copyright holders’ situation worse. Surely, it is hard for a copyright holder to police whether the buyer actually deprives himself of the digital copy which he claims to have been resold. However, a copyright holder who distributes copies of a work on a material medium such as a DVD, to which the exhaustion doctrine applies definitely, is faced with the same problem. To fix the policing problem, a copyright holder can and does adopt technical measures to protect his own interests from dishonest acts. Furthermore, he can sue the buyer for infringing on the distribution right. To be exempted from infringement，the buyer shall carry the burden of proof that his acts satisfy the conditions for exhaustion, one of which is no access to the copy resold after its online delivery. The burden of proof for the copyright holder to establish infringement remains the same, regardless whether the buyer’s online delivery act should be characterized as distribution or communication to the public through network. Therefore, it is unlikely that recognizing digital exhaustion will lead to increased infringement and added cost for enforcing copyright. Undoubtedly, should digital exhaustion apply, copyright holders would be exposed to competition from markets for “used” digital works and might suffer from economic injuries. But this harm comes from healthy market competition and is perfectly envisioned by the copyright exhaustion doctrine.
This paper dwells on the comparative law basis and theoretical basis that the intellectual property administrative law enforcement should be strictly restricted, which is on the background of the latest revision of the three main intellectual property laws in our country and the perspective of the expansion trends of intellectual property administrative law enforcement in the latest revision. Focusing on the latest revision of intellectual property laws in our country, this paper not only points out the drawbacks in reference to the current revision drafts from both the views of theory and practice, but also provides suggestions for the subsequent revision of intellectual property laws. Intellectual property administrative law enforcement is an important part of the administrative protection of intellectual property rights. Being different from the administrative management and the administrative service, it is the distinctive contents of the intellectual property legal system of our country, which consists of administrative handling and administrative disposal. Recently, our country's three main intellectual property laws are being revised, and the expansion trends of intellectual property administrative law enforcement is rather obvious. However, whether considering from the perspective of comparative law studies, or from the unique nature of intellectual property rights, the cost-benefit analysis of law and economics, the transformation of service-oriented government functions, the expansion nature of executive power, and the change of social conditions, the intellectual property administrative law enforcement should be strictly restricted. As to the comparative law perspective, the administrative protection in other countries is mainly reflected on the administrative management and the administrative service, with few contents about intellectual property administrative law enforcement. And even if there exist something relevant, the powers of the executive branch of government are never as heavy as in our country. As to the unique nature of intellectual property rights, intellectual property rights are private rights, and the majority of the intellectual property rights disputes belong to the pure civil disputes between civil subjects, so executive power should stick to the principle of moderation and should not interfere arbitrarily. The public right nature of intellectual property rights also requests the restriction to administrative law enforcement. As to the cost-benefit analysis of law and economics, the administrative law enforcement is not dominant on cost saving and efficiency increase when compared to judicial litigation. As to the transformation of service-oriented government functions, the government administrative system reform emphasizes the transformation of government functions, which means from the omnipotent government to the limited government and the service government, so the administrative organization should provide more service for the public rather than intervene the disputes of civil subjects through the methods of administrative law enforcement. As to the expansion nature of executive power, it has the characteristics of expansion and perishes ability, so it should be restrained in a reasonable range. As to the change of social conditions, the emergence and existence of administrative law enforcement has its certain historical conditions, which has changed now, and the construction objective of the rule of law society also requires the check and balance between authority. So it is necessary to restrict the administrative law enforcement. However, it is undeniable that the administrative law enforcement has played a significant role in the establishment and development of the legal system of intellectual property, the disposal and containment of intellectual property infringement and illegal behavior, and the improvement of protection level of intellectual property rights. TRIPs does not exclude the application of the administrative law enforcement. Therefore, the administrative law enforcement can be reserved properly in intellectual property laws in our country, but it should be strictly restricted in the subsequent revision as well. In general, the administrative law enforcement should be gradually weakened, and the judicial protection of intellectual property should be given priority to the administrative protection. It is necessary to treat differently the different types of administrative law enforcement behaviors, i.e., the administrative adjudication to pure civil disputes of intellectual property should be weakened and even abolished wholly, the administrative mediation could be promoted, and the administrative disposal should be timely adjusted both in scope and strength.
The Feast of Fools, dominated by the churches, had been the most important carnival festival in the medieval France. The earliest definite record on the Feast of Fools appeared in the second half of the 12th Century. Its rise or cause for concern in this period might be due to two main reasons: the anxiety of the millennium as well as the beginning of the campaign toward faith ''purification.'' It has been long, but wrongly, believed that the Feast of Fools was the festival for the lower clergies only. In fact, considerable evidence has proved that in the Middle-Ages, the feast encompassed supporters and participants from virtually all social strata, genders and ages, including senior clergy and the nobility. In other words, the upper classes did not reckon the vulgar carnival celebrations to be dishonorable or shameful, and they are themselves openly engaged in the same carnival games, too. This typically reflects the community-oriented lifestyle in the medieval France, in which all members shared the same cultures, beliefs and lifestyles. The fundamental reason for that is that the medieval people lived in a world full of a variety of real and imagined, natural and supernatural threats, and therefore needed to expel their fears by certain common religious rituals as well as to unite all community members to confront these difficulties. The Feast of Fools carnival games possess both of the above features, and thus were crucial for the people of the time. That explains why there was little progress for centuries despite the fact that someone had always been opposed to Feast. It was not until the 14-15th centuries that, when the traditional church and social systems were shaken by the Black Death, the Great Schism, the Hundred Years War and other profound social crisis, began the collapse of the traditional church and social system. New requirements were raised as to the proper conducts of the Church and the clerics. The new religious ideas, represented by nominalism, started the process of ''rational'' separation between religion and secular lives. In this context, the churches began to expel the Feast of Fools celebrations from its territories, followed by prohibiting clergies to participate in public plays. The Feast of Fools declined and gradually disappeared in the mid-16th Century. These developments also marked the disintegration of the traditional communities as well as the alienation and conflict between elite culture and popular culture. From then on, popular culture became synonymous to the like of vulgar or disorder, and turned in to the object of reform and repression. However, the Feast of Fools carnival still demonstrates profound positive influences on the modern culture of the West, such as expanding the cultural tension and diversity, and providing an ideological basis for the utopian theories and communal autonomy concepts.
Textual research and interpretation relevant to the history of art is an activity of hermeneutics. The discussion stirred up by Guo Moruo's article The Discovery of Wang, Xie Epitaph and the Authenticity of the Orchid Pavilion Preface has not ceased so far. The academic significance of this discussion goes far beyond the authenticity of the Orchid Pavilion Preface ，and constitutes an excellent example of hermeneutics. First of all, Guo Moruo's historical research method towards ancient historical data, his premise and assumptions on the counterfeit works in particular, has already contained a procedure of hermeneutics, in which an assumption is made in advance and then a collection of relating data follows up. This method depends mainly on hypothesis. The indirect historical data correlate with each other through logic and reasoning that rely on subjective imagination. Secondly, the historical dating method centering on stylistic and ideological histories depends on the circular argument and procedure of hermeneutics, too. That's why a textual research which applies basically the same materials tends to reach widely divergent, even opposed results. The collision of textual research proves a crisis it is faced with, because the so-called significance of historical materials and facts shows in organizing the messy historical facts to an overall layout and organic integrity, not in any new historical materials. History itself doesn't automatically present significance. The purely objective historical research builds on researchers' recognition to their limitations and their constant self-reflection. Then, a real sense of history is a comprehensible and meaningful diagram view constituted by a series of related historical documents. It is unnecessary to study the history, if the historical materials themselves can speak. Because historical materials need to be interpreted, human beings constantly rewrite history. Generally, we claim that historical texts communicate historical truth. But every real statement of facts is not the guarantee of a historical diagram view without distortion. Therefore, simple literature criticism can't restore the original truth of history. What we get from literary documents is fragments in the historical perpetual flow. How to collage historical fragments to the complete conception and thought and even a concrete thought is not only the task of textual criticism but it depends on ideologists' explanations. Actually, any textual criticism is impossible without explanation, and it shows certain tension in their relation. In the research of art history, textual criticism of historical materials and judgment of styles can't shake off the pre-understanding and circular argument from subjective value standpoint. Only when admitting the effect of pre-understanding in the research of art history, the researchers can be more conscious in the limitations of their research methods, more objective to explore methods of the research of art history and more prudent to make a judgment. As the fact proves, to distinguish between truth and fake in the ″Ku-shih-pien″ school fails to distinguish true ancient books from those fake ones, but to misunderstand ancient book formats in modern perceptions. In other words, when we doubt ancient books, we would rather allow those ancient books change our concept than judge their authenticity. It is in this sense that the pre-knowledge with goodwill is more reliable and meaningful than the pre-knowledge with complete subversion of the tradition in the research of traditional culture.
The literature of the adherents of late Ming and early Qing Dynasty has been a hot issue in literary study. The previous research focused more on the adherents' poems, but little on their prose. As a result, some great prose writers have been neglected, their position in literary history has not been acknowledged, and the whole picture of the prose writing network of the adherents remains unclear in the representative works of the Chinese prose history. Li Shixiong, an obscure prose writer in the works of literary history over the last 100 years, is such a symbolic figure among the adherents. Out of the mission awareness of an adherent of Ming and his cultural choice of being another Sima Qian, the great Chinese historian Li Shixiong spent over 40 years composing a considerable number of poetic and vigorous prose works imbued with loyalty and indignation, combining bitterness of feeling and elegance of form. Li proved to be a prose giant not only adored by intellectuals all over the country during his lifetime, with an honorable title of ''leader of the literary circles'' by Huang Zongxi, an authority on 17th century prose, but also appreciated after his death by various emperors like Kang Xi, Yong Zheng and Qian Long, and emperors in late Qing. The greater symbolic value of Li Shixiong lies in the fact that his prose wiring and historical influence are just the tip of the huge iceberg of the pivotal function which the adherents occupy in the evolution of prose at the turn of Ming and Qing Dynasties. These adherents developed close intimacy through daily communication and frequent travels together to meet other friends, and became sworn brothers because of their similar ages. Their prose writing formed a large and extensive noded network. One of the nodes was constructed by the group of Yi Tang prose writers and Peng Shiwang, Li's best friend, was among them. Except for the small nodes of individual writers such as Li Shixiong, Fu Zhanheng and Qian Chengzhi, there were larger nodes of prose writer groups: the Three Mountains on the River's south in Jiangxi province (i.e., the Peak in Xinjian, the Bun Hill in Xinzi and the Chengshan in Nanfeng)|Beitian in eastern Guangdong|Banqiao in Nanjing, Xixi in Hangzhou, and Wanxi in Changshu, as well as other places like ''Wenquan，'' ''Ruizhu'' and ''Jianjiang.'' These writers constituted a network covering China's Southern Guangdong, Western Fujian, MidAnhui, Nanjing, Zhejiang Province and almost the whole province of Jiangxi. There were countless subnetworks with Li Shixiong, Wei Xi, Qu Dajun, Wang Youding, Huang Zongxi and Zhang Dai as nodes. With frequent communication among large and small nodes, the prose wring of the adherents of Ming formed a large, selfperpetuating and welllinked network, covering most of the antiQing districts, occupying an undisputed central position and exerting great influence on other prose writers in the early Qing, and ushered in a period of high prosperity of prose writing. For example, in the years from 1676 to 1681, prose writers adhering to Ming such as He Jie and Peng Shiwang strongly felt the impact of the large number of famous prose writers and their unprecedented creativity in the two or three decades, and declared that prose writing was at its peak. Following such a train of thought and with downtoearth textual research, this paper fills the blank in the macrostudy of prose writing of the adherents of Ming at the beginning of Qing Dynasty.
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