What are the legal thinking methods of jurists? What is the controversy of contemporary legal methodology? ... let's answer it in detail.

Legal thinking is the basic character that a legal person should possess.

Source: Forum on Politics and Law (Journal of China University of Political Science and Law)

Shixuzhai

The history of the rule of law and the development of law in western society shows that the legal person (the same subject of the legal profession) has made indelible historical contributions to the choice of the road of rule of law, the promotion of the country ruled by law and the progress and development of the discipline of law. In recent years, China's legal circles have also proposed that the legal profession should be established and formed as soon as possible in order to promote the early realization of a socialist country ruled by law and the prosperous development of legal disciplines. The main reason for judging the existence of legal profession and the quality and level of legal persons lies not in their knowledge of the law, but in their unique way of thinking and excellent thinking quality, that is, whether they have the basic quality of strict legal thinking.

First, legal thinking is a kind of professional thinking different from other thinking.

There is no disagreement in the theoretical circle whether legal thinking belongs to professional thinking. The key is what characteristics and qualities legal thinking has as a professional and professional thinking. It can be said that different people have different opinions. But generally speaking, the academic circles are more obedient to the country ruled by law and its practical needs, giving legal thinking certain value attributes. Starting from the laws and attributes of "thinking" and focusing on the essential differences between legal thinking and other thinking, this paper puts forward several basic attributes of legal thinking, aiming at explaining that it is this that fundamentally determines that legal thinking is an indispensable basic character of legal people.

(1) Legal thinking takes legal language as the thinking language.

Thinking is an indirect and generalized reflection of objective things in the human brain, and it is a rational cognitive process realized by means of language, that is to say, "the construction of thinking activities and their modes is completed under the condition of direct participation of language" [1] (P 67), so language and thinking are closely linked. As a specialized technical knowledge, law is also closely related to language. "Language is not only a special and difficult external form to convey legal concepts, legal systems, legal norms and legal psychology, but also an inseparable organism once the law is formed. ..... For the law, it is impossible for us to intuitively understand any abstract or concrete meaning of it from the perspective. Only through the integration and organization of language symbols can we know and understand the law. " [2] (P 49-52) Language is not only the expression form of law, but also the meaning of law must be constructed by language. Legal language used to express and construct legal meaning has become a language ideographic system, which runs through the whole process of law formulation, research and application. Therefore, legal language is a typical thinking language and is necessary for legal thinking. Because "different occupations have different language systems and characters, and different characters produce different thinking. What language we learn, we learn how to think according to our specific roles "[3] (P 1). Therefore, as a legal person, besides having rich legal knowledge and the ability to understand and apply the law, one must also master the standard legal language and its basic knowledge and theory, including the basic theory of legal linguistics, the basic knowledge of pronunciation, semantics, vocabulary and syntax, the basic requirements of written and spoken language, the connotation and extension of basic legal terms, and even some theoretical knowledge of legal language philosophy. At the same time, he must have the skills to use legal language. Only in this way can social interaction and communication be carried out on the basis of legal language.

(2) Legal thinking takes "advocating the law" and "abiding by justice" as its mindset and value orientation.

"mindset is the basic element of thinking mode, which refers to the specific focus and restriction mechanism of the subject's adjustment of cognitive orientation and behavior mode." "Any mode of thinking has its own set. Without a set, there is no mode of thinking." [1] (P 125) Therefore, the mindset directly reflects and shows the outstanding functions and unique attributes of a specific way of thinking, and actively influences and effectively strengthens the role orientation of the thinking subject and its thinking value orientation, which determines that group thinking must have the same mindset and consistent value orientation, and make it inherently different from other professional and professional thinking. Law, as a typical code of conduct in a certain historical period of human society, has become the most authoritative code of conduct in a country ruled by law and a society ruled by law since it was selected by the ancient Romans as the basic rule for constructing and regulating social order, especially inspired and educated by the thought of natural law. The concept of "the supremacy of law" has been deeply rooted in people's hearts. This also determines that the stereotype of legal thinking is mainly manifested as "advocating the law". In the face of any social contradictions and disputes, the basic task is to make legal and illegal judgments, and finally define rights and obligations according to the law. At the same time, fairness and justice, as the eternal value pursuit of law, fundamentally determines that the basic value orientation of legal thinking also lies in "abiding by justice". Therefore, legal thinking is obviously different from other ways of thinking. For example, ethical thinking (moral thinking) takes whether it meets moral requirements as its thinking set and the evaluation of good and evil as its value orientation; Economic thinking takes the comparison of input and output as the mindset and the pursuit of economic efficiency as the value orientation; Political thinking takes the balance of political advantages and disadvantages as the thinking set and whether it is reasonable and beneficial as the value orientation.

(3) Legal thinking is empirical thinking under the guidance of rationalism.

In fact, the legal system is a dynamic construction of ideal social relations and order by people on the basis of summing up and condensing past social experience and knowledge, using certain technology, based on certain will and interests, and through rational efforts. Therefore, the implementation of the law is actually a process in which the legal person understands and applies such a legal provision combining rationality and experience to solve social contradictions and disputes, which is neither pure speculation nor pure empirical judgment. In this process of "understanding" and "application", on the one hand, legal person, as the practical subject of law, must comprehensively apply legal principles, reasonably explain legal provisions, ② emphasize and follow logic, ③ observe and explain social justice, and at the same time, comprehensively investigate the ever-changing and complicated case facts, and finally realize the reasonable construction of social order through the settlement of social contradictions and social disputes. Therefore, legal thinking must be a thinking activity under the guidance of certain rationalism, which is inseparable from the rational understanding and thinking of the philosophy and values of legal persons. Dworkin believes that in specific cases, the argument about the application of law by judges reflects the theoretical argument at the abstract level, so its argument is not only "concrete" but also "abstract"; It is both a demonstration of "practice" and a demonstration of "theory" [4] (P 164). On the other hand, "the purpose of law requires legal professionals to combine experience analysis and value judgment perfectly" [5] (P 107), so it can be said that "legal thinking is the professional activity of legal persons under an experience condition and within a certain range" [6] (P 49). Because the legal concepts, legal norms and legal principles stipulated by law are universal and abstract, it is impossible to "correspond one by one" in the face of complex and changeable social reality, which requires legal persons to make full use of their rational understanding and actively adopt empirical analysis. For example, when someone buys 100 counterfeit Parker pens and requests to obtain a double indemnity according to the relevant provisions of the Consumer Protection Law, the judge should not only make a rational analysis of the "consumers" according to law, but also judge from an empirical perspective whether the purchase of 100 Parker pens is really for "consumption" under normal circumstances.

(D) Legal thinking is a group thinking.

The subject of legal thinking involves all "legal persons", that is, legal thinking is owned by the same legal subject, so some scholars define legal thinking from this perspective: "Legal thinking mode is the mindset formed by professional legal groups based on the nature of law, and it is the way to understand social phenomena influenced by legal consciousness and legal operation mode." [7] (P 103) All legal persons, including judges, prosecutors, lawyers and even legal scholars, have formed a stable group organization structure, used standardized and unified legal language, and followed the same thinking logic and value orientation around the same purpose and psychological needs in the process of professional thinking, so as to be able to communicate and understand each other. Of course, the group thinking of legal thinking is also different from the group thinking constructed by natural evolution such as primitive commune, which belongs to the construction mode of "artificial setting" [1] (p11). That is to say, as a legal person, the cultivation of his legal thinking is not only influenced by long-term participation in group professional activities, but also needs special training and exercise to have a consistent and stable thinking mode and method with other members of the same professional group and reach a certain level.

Second, legal thinking is the basic character of legal person.

(a) legal thinking is the legal person's professional characteristics and legal profession * * * the same body of the bond.

Sociologically speaking, the legal profession refers to a social role who has received special legal education, has the qualifications stipulated by law and obtained the qualifications stipulated by the state, and specializes in legal work. In western legal works, legal profession refers to all kinds of work directly related to law, usually referring to so-called "legal persons", including judges, prosecutors, lawyers, legal advisers, notaries, law teachers, etc., but mainly referring to judges and lawyers, especially lawyers. The so-called legal professional identity is a professional group formed naturally by lawyers, judges, prosecutors and other legal persons who take law as their profession because of their similar occupations and consistent goals or through the power of some system.

To regard "legal person" as a profession at least means that "legal profession has a series of unique characteristics, so it can be distinguished from other professions. These unique features and elements include language (so-called French), legal skills, unique thinking method and reasoning process, special organizational form, unique symbol system, professional tradition and so on [8] (P 14). It is through legal thinking that legal person has obvious uniqueness and professionalism in behavior and way of thinking, thus having a vision and method different from other social roles in observing society, solving social contradictions and handling social disputes.

All social relations with language as the medium need the recognition mechanism and system of language meaning in order to achieve the purpose of communication. "Different people express their truth in different ways; In people with different backgrounds, it is easy to explain the truth in the corresponding language, so as to achieve communication and form * * * knowledge; And between them, it is difficult to achieve the corresponding effect. Therefore, what legal persons need is to form their own discourse system, including their own industry concepts and professional language, professional thinking and professional methods. " [3] (P 1) The strength and factor to maintain the legal professional identity is not only the superficial factor that its members are engaged in the "legal profession", but more importantly, all its members, as legal persons, have the same knowledge background, way of thinking, social goals and psychological demands, and use this as the basis for mutual communication and exchange. Therefore, legal thinking has inherently become a link between members of the legal profession.

(2) Legal thinking is the core content of legal reasoning and legal argumentation.

Both theory and practice show that compared with analytical positivism, the professional activities of legal persons are by no means like vending machines-they eat legal provisions and spit out legal judgments. The current legal provisions themselves are an open system composed of legal concepts, legal norms, legal principles, general legal thoughts and legal concepts. John Gray even thinks that written law, like precedents, habits, opinions of legal experts, ethical principles and policies, is the source of law rather than the law itself. Those who apply the law are all based on these sources when forming real legal rules. It is precisely by combining these sources with the facts of specific cases that the legal applicant "formulated" the legal rules in the process of adjudication, and the rules "formulated" by this legal applicant are the real laws [4] (P 7 1-72). Benjamin Cardoso, Jerome Frank, Llewellyn and Oliver Hobbs are all skeptics of rules, and they all deny that rules are the only form of law. Therefore, in the process of understanding and applying the law, it is not enough for the legal person to only make formal reasoning. Deductive reasoning, that is, syllogism reasoning method, is widely used in civil law system dominated by written law. According to the "major premise" of legal norms and the "minor premise" of case facts, the "conclusion" is derived as legal judgment; In the Anglo-American legal system with case law as the main legal source, inductive reasoning that generalizes general conclusions from special facts occupies a prominent position. At the same time, the judicial principle of "following precedent" also determines the significance of analogical reasoning from special to special. However, once the premise of legal reasoning (legal norms or precedents) is flawed or doubted, the significance of formal reasoning will be limited, especially formal reasoning can not meet the needs of value judgment in the process of legal reasoning. Therefore, substantive reasoning is very important in legal reasoning. (5) Not only that, "the legal problem is a very complicated social problem, which often involves not only a legal judgment, but also a moral or just judgment, that is to say, a value judgment, which is one aspect. On the other hand, it means that the problem it has to deal with is not linear, that is, it does not mean that a case can only be solved by law according to logical syllogism, but a process of dialogue and discussion. In addition, the judgment or thinking about the law must be expressed as a kind of public opinion. " "The so-called public opinion can't be a private opinion, that is, it can't be just a personal subjective opinion. Your understanding or judgment must be proved ... this is a starting point for theoretical thinking of legal argumentation. " [9] (P 2 1) Therefore, "legal argumentation" is a common legal method for legal persons to discuss related propositions by comprehensively using legal provisions and value judgments in legal practice, especially in judicial practice. However, both legal reasoning and legal argumentation are essentially based on or manifested as legal thinking activities of legal persons. "Legal thinking is the core content of legal methods, because only by relying on correct thinking activities, including strict and legal legal reasoning, legal interpretation and legal argumentation, can we form and deduce the correct conclusion to solve legal problems and truly do things according to law. Legal technology, legal procedures and legal facilities. They are all generated around legal thinking, in order to cope with the particularity of legal thinking. " [3](P 1)

(3) Legal thinking is the basic need for the continuation of legal life and the realization of value.

Legal phenomenon belongs to social phenomenon, which is not only produced to meet the needs of adjusting increasingly complex social relations, but also exists and develops to pursue and realize a certain social order. Any legal provision itself is meaningless, and its function and value can only be reflected and displayed if it acts on certain social relations. Therefore, "the life of law lies in understanding, interpretation and application. ..... People's understanding of the law determines the boundary of legal effect. If people leave the understanding, interpretation and application of the law, the life of the law will stop. " "In a serious court, it is attended by judges, parties, lawyers and prosecutors. Mainly some thinking activities. Here, the most indispensable thing is the understanding and interpretation of laws and facts by these life subjects. " [10] (P 32) If legislators discover laws through legal thinking and endow "rules" with legal life, then judges and law enforcers activate laws through legal thinking, continue the life of laws and realize the value of laws in the process of adjusting social relations. As the saying goes, "without rules, judges can still decide cases;" Without judges, rules will never get life. " [1 1] (P.97) It is the legal person's legal thinking that enriches, develops and realizes the law.