The series of "Law and Risk Society" is a series of theoretical achievements formed by the Kaiyuan School of Law of KoGuan Law School based on the research of legal governance and institutional innovation of risk society, and is edited by Professor Ji Weidong. The series consists of five volumes:
Zhang Shaoqian and Yang Li, editor in chief, "Corruption Risk and Comprehensive Governance Based on Criminal Law"
Han Changyin and Xu Duoqi, editor in chief, "A Commercial Law Response to Risks in Corporate Management"
Shen Wei and Hou Liyang, editor in chief, "Risk Governance in a Puralistic Society"
Xu Donggen and Xue Guifang, editor in chief, "Uncertainty and Risks of the International Legal Order"Ji Weidong and Cheng Jinhua, editor in chief, "The Role of Law in Risk Society"
In the context of modernization and globalization, one will feel that various types of risks are ubiquitous. Therefore, China today has to get used to the situation of coexisting with risks and strengthen its ability to control risks. The purpose of risk management is to protect valuable things and prevent damage and disasters through preventive measures. As Zuo Qiuming said at the end of the Spring and Autumn Period, "Be prepared for danger in times of peace.". But even if people understand this truth, they often tend to avoid thinking and discussing risks. Why? Because it is easy to have a psychological preference for reporting good news but not bad news, and also because of frequent concerns about ridicule from "crow mouths" or accusations and suppression of so-called "negative energy" words and actions. Moreover, if the risk is confirmed by the hazard, it is always probable and uncertain. If a risk warning is issued, but the harm does not occur and even incurs additional cost burdens, it is likely to lead to complaints such as "punishment" and "unfounded worries", resulting in a decrease in trust in reminders, decision-makers, and executors. Therefore, whether to reveal risks, when to reveal risks, and what preventive measures to take are always quite thought-provoking, and sometimes even confusing.
However, both business operations and national governance are full of risks. By using the style of Tsangyang Gyatso's love poems, it can be expressed as: 'If you say it or not, the risk is there, no increase or decrease.'. The problem of avoiding risk discussions is that it can easily encourage negligence and prevent risks from happening, ultimately leading to losses, crises, disasters, and even "extremely rare and harmful" human tragedies. In this sense, it is necessary to enhance risk awareness, promote risk communication, and focus on risk evaluation, prevention, and dispersion. For China in the transitional period, where various contradictions are intensifying, it is particularly necessary to strengthen the trend of prevention before they occur, continuously draw lessons from experience, especially from failures, and improve error correction mechanisms. Multiple protective measures should be taken to respond to risks, crises, unexpected changes, and emergency situations caused by disasters or public events.
Ulrich Beck's masterpiece "Risikogesellschaft：Auf dem Weg in eine andere Moderne" was published in 1986 and has been influential worldwide for almost thirty years. The relevant literature has also been abundant. Based on my observation and understanding, in the field of social sciences, discussions on risk issues are mainly distributed in the following four basic quadrants. (1) From the perspective of risk, we will re recognize and reflect on modernity, propose a diverse and complex modern social landscape, and strive to rectify some shortcomings in technology, industry, cities, economic models, and national governance methods. This position is the starting point of Beck's risk society theory and is also reflected in Anthony Giddens' theory. (2) Constructing a new social system theory from the perspective of risk, the most representative of which is the analytical framework proposed by Niklas Luhmann's Sociology of Risk. Luhmann regards accountability for decision-makers and corresponding risk communication as the key to understanding the interactive relationship between social systems and risks, which actually lays a solid theoretical foundation for studying the governance and legal conditions of risk societies. (3) From the perspective of decision-makers, administrative departments, or judicial authorities, explore the assessment, prevention, control, and specific response measures and regulatory methods for risks. There are a large number of such studies, such as Stephen Breyer's work on case analysis from the perspective of judicial technology, and Amin Nassehi's Type theory of risk management and control. (4) Based on the interaction between grassroots, interest groups, and ordinary citizens, understand and grasp risk phenomena and various coping strategies from the perspectives of organizational behavior, social movements, and communication processes. A series of research results by Jenny Casparson et al. are very typical. In particular, Nick Pickin and Paul Slovich put forward the concept of "social amplification of risk", which makes us notice the multiplicative effect and transmission mechanism between risk perception and risk communication, as well as the situation of "Group polarization" under specific conditions.
The four quadrants mentioned above are complementary, complementary, and complementary, with some overlap. Among them, (2) and (3) reflect the dimensions of the system, corresponding to structure and function, respectively, while (1) and (4) reflect the dimensions of the process, corresponding to meaning and media, respectively. If we further analyze and deduce, we can find that the fundamental issues emerging from various discourses are "governance of risk society" and "communication around how to allocate risk (Negative equity)". This precisely constitutes the object of understanding with profound legal significance.
It goes without saying that social science research on risk has also had a profound impact on the legal community, especially on the accountability mechanism for infringement. In recent years, in the fields of environmental law, administrative law, criminal law, Economic law, insurance law and other fields, the concept of risk often becomes an important opportunity for theoretical innovation and policy adjustment. Discussions on risk evaluation, prediction, dispersion and transformation have also begun to permeate into all aspects of law enforcement and justice. However, it must be acknowledged that the understanding and analysis of risk in the legal community is not comprehensive, relevant, and in-depth enough, especially the profound impact of the risk society on the rule of law and normative thinking mode. There is also a lack of necessary investigation, and there is no sufficient empirical research on the institutional arrangements and effects of risk control. Therefore, exploration of specific measures often stays at a superficial level. In China, research on law and risk society is still in its infancy. During the process of risk prevention and communication, relevant departments and experts often expose visual blind spots such as being limited by preconceptions, blindly optimistic, trapped in rigid thinking, and suffering from a lack of imagination.
It is on the basis of the above understanding that KoGuan Law School of Shanghai Jiaotong University has decided to take the legal governance and institutional innovation of risk society as the focus of academic activities at this stage, planned interdisciplinary cooperation projects and organized relevant thematic research and discussion. Our basic position is that in order to effectively prevent and control risks, we must not avoid potential problems, let alone conceal or distort the truth. Instead, we must create an atmosphere where we can freely explore the success or failure of systems, policies, measures, and error correction mechanisms. At the same time, it is also necessary to prevent the conservative distortion of risk awareness, adhere to the challenge spirit of "no risk is the greatest risk" and "there is a crisis, there is a turning point", and form an atmosphere of tolerance for trial and error. That is to say, it is necessary to strike an appropriate balance between encouraging risk decision-making and preventing and controlling risk in decision-making. As the peak plan of the Institute's collective tackling of key problems, this Transdisciplinarity project on law and risk society, on the basis of strictly distinguishing the concepts of "risk", "damage", "crisis", "total uncertainty" and "unexpected", takes the contradiction between the decision makers and the decision affected people and its solution as the entry point for the reconstruction of the national governance system and legal order; Make risk communication, protest movements, and related legal discourse around accountability the focus of theoretical innovation; When discussing specific systems, norms, procedures, measures and technologies, we should try to focus on the Distributive justice problem of how to cut and arrange risks as Negative equity, and use it as an engine to carry out Case study, empirical analysis and interdisciplinary cooperation, and establish a policy science system on law (it may also include the determination of the calculation indicators of the "risk life price" of various departments and industries and the measurement of different scales). In addition, it is necessary to reinterpret and interpret the basic categories and various related propositions of legal science from the perspective of a risk society, and explore daily rule of law models and emergency rule of law models that are suitable for national conditions.
As far as the innovation of the rule of law model is concerned, this Transdisciplinarity project attempts to build a national governance system that embeds "principles" in reasonable behavior. It can be said that the existing theory of rule of law basically regards "belief" and "desire" as the motivation for reasonable behavior, and various institutional designs are basically different combinations of these two factors. This is a typical practical rational instrumental analysis framework. However, in fact, only after the establishment of "principles" can behavior be made reasonable through standardized control and coordination. Therefore, the theoretical focus of this project is on the "principles" or justification embodied by different traditions, different system designs and different policy initiatives in a risk society. In empirical research, we will test, analyze, and verify the structure and function of normative control based on "principles", in order to further illustrate the relationship between behavioral rationality and normative control.
In my opinion, the rule of law model that embeds "principles" into reasonable behavior is more suitable for China's risky society and the chaotic reality of the internet in the 21st century, that is, the complex and ever-changing relationship between facts and norms. It goes without saying that in a highly relative and fluid situation, normative control based on "principles" is even more important. To this end, we need to abandon the "simple modern" view criticized by Ulrich Beck, and more emphasize the rationality and mechanism design of self reflection, so as to expand Philip Selznick's thinking on "responsive approach" and Gunta Toyebner's thinking on "hybrid approach". We need to make a concrete and in-depth study of the impact of government prevention and control on the behavioral level and accountability mechanism, and put Cognitive science, game theory The knowledge and methods of information processing technology and other disciplines are introduced into the fields of legislation, justice, and law enforcement, distinguishing between customs based on negotiation constraints and norms based on obligation constraints, and analyzing the behavior of obeying norms and the behavior of using norms.
To be specific, the risks facing China today include not only the crisis of governance legitimacy caused by the spread of structural corruption, but also the impact of the bursting of the foam in the stock market, bond market and property market in the process of rapid economic growth, as well as the destruction of the ecological environment, the erosion of life and health, the deterioration of urban public security, and the side effects of the use of science and technology, and so on. From a legal perspective, the prevention and control measures for risks include property rights (used to suspend or terminate potential threats and actual damages), creditor's rights (used to compensate victims for various losses), administrative prevention, criminal punishment, insurance claims, emergency response, and so on. After sorting out the objectives of risk prevention and control as well as the response means of the system, we extracted the following basic topics of the Transdisciplinarity project: public affairs decision-making and accountability and legal communication in a risk society; Multi layered and diversified risk governance mechanisms in mega cities and online societies; The uncertainty of the international order in the borderless era and the response to various Liquidity risk; Legal risk prevention mechanisms for enterprises, finance, and economic development; Criminal responsibility investigation and risk criminal law theory for structural corruption cases; The administrative prevention system and judicial review system aimed at risk control, as well as the coordination between various policies, and so on.
As one of the basic tasks of Kaiyuan Law School's summit plan on law and risk society, this series aims to sort out the problem awareness and focus of the above basic research topics, summarize the previous achievements in relevant fields and representative achievements of Chinese scholars, look forward to the future of risk law, and draw a knowledge map suitable for the positioning and progress of this project. On this basis, we will further explore the risk management and control mechanism of super large and complex systems from different dimensions, especially focusing on the laws of several sectors, such as ecological environment protection movement and right relief methods, industrial Economic security issues and administrative regulation methods, urban emergencies and crisis handling methods, the principle of proportionality of police activities, the principle of civil non intervention and grass-roots governance methods Empirical or normative analysis of policies and measures. Whether this series of books fully reflects the cutting-edge developments in the relevant fields can only be left for readers to freely judge; I hope that the attempts and efforts of our like-minded group can be helpful for everyone to further understand the governance issues unique to risk society and the trend of legal order evolution, and can also become another opportunity for China's legal theory and institutional innovation.
The publication of this series of books has received strong support from Huang Tao, Chief Editor of Shanghai Sanlian Publishing House, and Wang Xiaohong, Editor in Chief. Ms. Du Juan, the responsible editor, has invested a lot of energy and professional wisdom in the technical processing of each collection of papers. On behalf of the chief editors of each volume and all authors, I would like to express sincere gratitude to the publishing company. In addition, the planning, research and publication of the series of books on the theme of "Law and Risk Society" have also been funded by the major strategic publishing project of Shanghai universities serving the country and the CIREG major project of the School of Public Management of Tsinghua University, "Risk Society and Its Response".
Early Summer 2017