What is Law (Detailed Description)

Section I. Multiple Perspectives on the Law

Standing from different perspectives, people's understanding and awareness of "what is the law" is diverse. In ancient and modern times and at home and abroad, people's observation of the law from multiple perspectives has formed a variety of legal views.

One, the legislator's position of the view of the law

The more representative views in this regard are: (1) the command. This theory began with the Frenchman Bodin. Bodin created the doctrine of sovereignty, laid the theoretical foundation for the legal command theory. Hobbes, a representative of the school of natural law, believes that the law "for every subject is the statute which the state, by words, writing, or other sufficient expression of will, commands him to use to distinguish between right and wrong." Bentham, of the utilitarian school of jurisprudence, said that the law is an intimidating command of the state exercising its right to punish crime. Austin of the analytic school of jurisprudence, on the other hand, treats the law as a command of the sovereign, "A law is a command that requires an individual or a group of individuals to do this or that ...... Laws and other commands are thought to be declared by the superior and to bind or oblige the inferior." Au also explains the concept of law in terms of commands, obligations and rights. (2) The power (coercion) theory, i.e., law as a manifestation of power or coercion. For example, Shang Yang, an ancient Chinese legalist, said, "The law, the constitution and order is written in the government, the punishment must be in the hearts of the people, the reward is stored in the prudent law, and the punishment is added to the adulterous order." Han Fei said: "The law, compiled in the books, set up in the government, and cloth to the people." (3) Will theory. Ancient society people believe that the law from God or God out, the law is the embodiment of God's will. Since modern times, the law is often considered to be the embodiment of human (legislator) will. Such as the natural law school of Rousseau that the law is the product of the social contract, in the signing of the social contract, people let all the natural rights, to the sovereign group. The sovereignty of the people implies the implementation of the public will, which in all its manifestations is achieved by means of majority decision-making. Therefore, law is the manifestation of the public will. (4) Rules (norms). Such as the ancient Chinese Guanzi said: "Size is also, rope and ink is also, rules are also, weighing stone is also. Dobu also, angle measure also, called the law", "the law decree, the officials and people rule rope and ink also." Shen Jiaben, a jurist of the late Qing Dynasty, said, "The law is the program of the world and the instrument of all things." Medieval Western theologian Thomas Aquinas said, "Law is the code or measure of behavior by which people lead to certain actions and refrain from all others." The modern Western analytic-positivist school of law is even more explicit in treating law as a rule or norm. For example, the pure law school Kelsen believes that law is a mandatory normative order of people's behavior. British new analytical law school Hart believes that law is a combination of primary and secondary rules. Primary rules set up obligations, secondary rules provide rights.

Second, the judicial position of the view of the law

With the legislator's position of the view of the law is appropriate to contrast with the judicial position of the view of the law. This view of the law is popular in the case law tradition of common law countries. As the famous comparative jurist René Davide said: "English law is basically a case law; its norms should basically be found in the ratio decidendi of the judgments of the English high courts", accordingly, "the English legal rule is a case law for the lawmakers. English LEGAL RULE is case-specific, and is put forward for the purpose of resolving the case at the time of its hearing." In the history of Western legal thought, the legal view of the position of the judiciary has been dominant in Anglo-American countries. So much so that the English jurist Bianchin tried to reform the English legal system with little success. Judge's perspective view of the law, to choose the essentials such as the United States Justice Holmes said, "By law, I mean the prophecy of what the court will in fact do, and never any other empty words." The American jurist Gray said, "Law means only what the courts have laid down in their judgments; statutes, jurisprudence, expert opinion, custom, and morality are only the sources of law. The real law is created when a court makes a judgment." This view of law y influenced later American realist jurisprudence. So much so that the law was straightaway regarded as a judgment made by a court of law. As the American jurist Llewellyn said, "Law is not an official decree in this book; it exists in the actual activities of officials or civilians, and especially in the trial activities of judges. What the official does in relation to a dispute is the law. Frank, the jurist, said, "In any particular case, the law is either the actual law, i.e., a past judgment about the situation; or the approximate law, i.e., a prediction about a future judgment." Today's famous American jurist Dworkin also holds a judicial perspective view of law. According to De, law is interpretive in nature and law is accomplished in interpretation. Law is an interpretive concept. Since the so-called legal interpretation in Western countries is purely a judicial activity, there is no legislative interpretation like in our country. Therefore Dworkin's view of law is a typical view of the judicial perspective.

Third, the sociological perspective view of law

The emergence of the social law school was the most significant event in the field of Western jurisprudence in the twentieth century. It gave the concept of law another completely new perspective of observation. Social jurisprudence applies the scientific method to jurisprudence, and advocates placing the law in society, recognizing and understanding the law through its actual operation in society, and combining the relationship between the law and social facts. Social jurisprudence focuses on defining the concept of law in terms of its social basis, its role in society and its concrete effects. This constitutes a serious intellectual challenge to the traditional Western view of law. For example, according to the American jurist Pound, law is a "social project", a highly specialized form of social control implemented through the use of authoritative decrees in the judicial and administrative processes. The aim is to satisfy the needs of all mankind as far as possible with minimal sacrifice. Pound also further analyzed the structure of law, put forward the law - technology - ideal of the model theory of law. The Austrian jurist Ehrlich clearly advocated that the center of gravity of the development of law lies in the society itself and not in the state. He therefore rejected the traditional conception of law as, first, created by the state; second, as the basis for the judgment of a court or other adjudicating authority; and, third, as the basis for the validity of a judgment by legal compulsion. Ehrlich goes on to distinguish between two categories of law, those created by the state; and the social order itself. Law as the social order itself, Ehrlich called "living law". According to Ehrlich, the traditional conception of law as state-made is in fact only a small part of law. Therefore, he emphasized the study of "living law". American realist school of law Llewellyn had in accordance with Pound on the "law in book (law in book)" and "law in action (law in action)" point of view, distinguishing between the "paper rules" and "law in action". paper rules" and "real rules". And that the real law is the latter, so that "officials on the dispute made is the law". German jurist Heck and other representatives of the law of interests, that the origin of the law from the conflict of interests, contradictions and struggles. Legal norms are constituted by the principles or principles formulated by the legislator to resolve various conflicts of interest. In judicial decision-making, the judge must determine the interests that the legislator aims to protect by means of particular legal rules. According to Black, a present-day American behaviorist school of law, "law exists in observable behavior, not in rules." Today's Western anthropologists also propose that law is a form of "local knowledge". This view of the law since the 1990s has affected the legal profession in China, manifested in the rule of law and its local resources for theoretical discussion.

Four, ethical view of law

Law, morality and religion are the three main means of human social control. The relationship between law and morality is manifested as the relationship between contingent law (natural law) and positive law (enacted law) at the level of philosophy of law. This has been a fundamental issue in the history of Western jurisprudence for a long time. From the perspective of ethics to look at the law, in the West has a long historical origin. The ancient Greek Aristotle that the law "should be to promote the people of the whole state can enter into the justice and goodness of the system." The Roman jurist Gershwin defined law as "the art of goodness and justice". The medieval theologian Aquinas, on the other hand, argued that a violent law, since it is not based on sound reasoning, is not strictly and truly a law at all, but rather an abuse of the law. So the validity of the law depends on its justice.17 The classical natural lawyers of the eighteenth and eighteenth centuries argued that natural law is the embodiment of human reason and the manifestation of justice. Natural law exists prior to and above positive law, and the positive law enacted by the state must conform to natural law in order to be true law. Thus law is the command of justified reason. It can be seen that the natural law school of law is essentially some moral standards and requirements. The German classical philosophy of law emphasizes the intrinsic connection between law and freedom. Law is freedom as a concept, is the universal law of freedom. 20 century new natural law school still insisted that law and morality can not be separated, the law has a moral nature. Therefore the laws enacted in Nazi Germany that violated humanity were not law at all. In short, the ethical perspective of the law throughout the history of Western jurisprudence. This is manifested in the unique thinking mode of the Western natural law and positive law dualism law. This is also the intrinsic cause of the distinction between law (subjective law) and law (objective law), and the inextricability of law and freedom, justice and rights. In contrast, Western analytical jurisprudence insists on the separation of law and morality, advocating that "bad law is also law" and equating "law as justice" with "law as the will of the legislator". In essence, contrary to natural jurisprudence, the law is reduced to the embodiment of human will. In Western jurisprudence, rationalism and voluntarism constitute two opposing views of law.

The relationship between law and morality is also an important topic in traditional Chinese legal culture. But the subject it discusses is different from the West in that it does not focus on the connection between law and morality in an ontological sense, but rather on the function and status of both in social life. In ancient China, the dispute between Confucianism and law was only about which of law and morality was more suitable as a tool of rule. Confucian claims eventually prevailed. Ethical law constituted the basic essence of Confucian legal thought, and morality and propriety were superior to criminal law. As a result, law in ancient China was subordinate to ritual. Not only was the formulation of law governed by ethical principles, but also judicial decisions were permeated by the concept of morality and propriety. As a result, ancient Chinese law lacked an independent character and was reduced to a ruling tool of the monarch's will. Therefore, ancient Chinese law was a typical "ethical law".

Section 2: Basic Characteristics of Law and Legal Way of Thinking

I. Basic Characteristics of Law

For a long time, jurisprudence usually expresses the basic characteristics of law as follows: law, as a social norm different from other social phenomena such as morality and religion, has the attributes of normativity, national volitionalism, the basic contents of rights and obligations, and coercion, etc. This view is based on two points. The basis of this view is twofold: firstly, from the legal conceptual level, the starting point and operation center of the above legal characteristics is the state and the government; secondly, from the legal operation level, the definition of the above legal characteristics implies a top-down legal operation mode. The shortcoming of the above generalization is that the observation object is limited to national law. This is the product of a legislative perspective view of law. Although this view reflects the attributes of law to a certain extent, it is a generalization from only one perspective, ignoring other perspectives and aspects. The basic characteristics of the law corresponding to the modern rule of law are:

First, the law as the behavioral norms of social relations, with universality, certainty, objectivity and other normative attributes.

There are many kinds of social norms. Including moral norms, religious norms, customs and etiquette, regulations and discipline and folk rules. Law is but one of the social norms. What distinguishes the law from other social norms is that the law regulates social relations and achieves the purpose of social control by regulating human behavior. Thus, law does not involve the regulation of human thought. Moral norms, on the other hand, regulate social relations through thought control, and custom regulates social relations through social ideas. Marx said, "For the law, I do not exist at all except in my behavior; I am not the object of the law at all." Thus law works by regulating and adjusting human behavior.

Law, as a social norm that adjusts behavior, is normative. This is manifested in (1) universality. Unlike the kind of individual adjustment, the law itself that presupposes the existence of rules (norms), and norms (norm) the term originates from the Latin word norma, which means rules, standards or yardsticks. So the law is general, abstract and generalized. It is directed at an unspecified person or thing and treats everyone equally. Thus it can be applied repeatedly. At the level of legal effect, the law manifests itself as universally binding in time, space, on people and on things. At a deeper level, this repeatedly applied and universally observed law has an inherently universal moral character. This is an important reason why Western law is often associated with fairness, justice, rights, and so on. This universality of law transcends even the boundaries of countries and nations. This is why legal transplantation and legal globalization and unification are possible today. (2) Certainty. Law is the confirmation of past social relations and social order, and takes legal rules as the main constituent elements. And legal rules have a high degree of clarity, specificity and certainty. In this sense, the law is a conservative force in society. The judicial process relies on the legal rules of the strict formal logic of legal reasoning, thus ensuring the certainty of the results. Since modern times, the extensive legislative activities in western countries and the rise of empirical analysis of jurisprudence in legal research have prompted people to the pursuit of legal certainty. Legal certainty constitutes one of the important foundations of the modern rule of law. (3) Objectivity and rationality. Another foundation of the modern rule of law lies in the fact that the law is a rule that accepts the guidance of reason and conforms to certain rational principles and social laws, and has the function of eliminating and restricting the arbitrary behavior of human beings, and thus the modern law has certain objective attributes. According to Weber, a famous German thinker, capitalist production and development require that the law can be rationally calculated, and Western law thus manifests itself as a form of rationality. The function of law is to establish and maintain an expectation of behavior that can be roughly determined, thus facilitating people's interaction in economic activities. The objectivity and rationality of the law derive from the purposefulness and predictability of people's behavioral relations, thus limiting and eliminating the blindness, unconsciousness and irrationality of human behavior. In the judicial process, the objectivity of the law is specifically manifested in the objectivity of legal interpretation, manifested in the search for the only correct interpretation of the legal interpretation. The modern theory of the rule of law is rooted in this. Because the rule of law is the rule of rules, is to use objective external rules to limit the subjective arbitrary.

Secondly, the law is from the state and rooted in the social basis of social norms with relative independence.

This is the definition from the ontological source of law. Sociology and anthropology of law show that law is pluralistic, both from the state and society. In the case of the former, laws are usually norms of behavior that are formulated and endorsed by the state. It has been argued that enactment, endorsement and interpretation are the three main ways in which law is created. This view is debatable. Legal interpretation is originally a typical judicial activity and should be categorized as such. But the legal concept of equating law with legislation is extremely prevalent in China, and the concept of legislation is often extended to accommodate the interpretation of law. This is the internal logic of the above view. In fact, the main way of law creation is the state enactment and recognition. Enactment is the generation of legal norms through legislative activity, while endorsement is the recognition by the State of established social rules and the giving of legal effect to them. This is usually done in the following ways: first, by giving legal effect to certain social norms such as morality, religion, customs and rituals; second, by recognizing, signing or acceding to international treaties, and by endorsing the norms of international law so as to make them legally binding at the domestic level; and, third, by forming and making legally binding a certain set of rules and principles by means of a judicial decision in a specific case. Legal interpretation is not a way of creating law.

Third, the law is functionally mandatory and ontologically justified.

Compulsion is the use of force, repression, coercion and sanction as the hallmarks and characteristics of law. In the historical process of the rise of the modern nation-state, with the state in the legislative, judicial activities in the status of the increase or even to the monopoly, the concept of the law of coercion is becoming more and more prominent. This concept in the history of western jurisprudence has experienced from the French Bodin to the British Hobbes and finally to the analytic school of law Austin's doctrinal development. The doctrine of coercion is built on the basis of human nature's evil. In the basic model of law, law is viewed as a command of the sovereign. In the relationship between right and power, it regards the ruler's power as supreme. Since the twentieth century, western jurisprudence schools coincidentally show the dilution or even dissolution of the traditional concept of coercion, that is, in recognition of certain situations in the implementation of the law depends on the "coercive force" as a backing, but cancel the "coercive force" in the concept of the theory of law. This marks the beginning of a new trend in Western jurisprudence. This marks a change in Western jurisprudence at the level of the ontology of the concept of law.

Fourth, the law is a social norm with rights and obligations as its main content.

In the 1980s, China's jurisprudence explicitly summarized rights and obligations as the basic categories of jurisprudence. Rights and duties are indeed the decisive factors that characterize law and thus distinguish it from other forms of social regulation such as morality, religion, custom and discipline. Rights and duties constitute the basic content of law, permeate all branches of law, run through the entire process of its operation, and comprehensively characterize and embody the values of law. In the history of western jurisprudence, law and rights have a very long history and cultural origin. Latin jus at the same time has the right, the law and justified several meanings. Subjective legal rights are often called subjective law (rights). From the philosophy of law, when the rules of law set rights and obligations, that is, when the law is used to express the will of the legislator, the rules of law set by the behavior is not psychological sense of the legislator's "will". In this case, the legal rules establishing rights and obligations express that a person "should" behave in a certain way without implying that anyone actually "wants" him to behave that way. In this sense, law belongs to the category of the "ought" rather than the "real". In positivist jurisprudence, which is based on this theory, rights and duties are legal and quantifiable. Through rules or norms, the law stipulates rights and obligations in the form of authorization, command or prohibition, adjusts people's behavior, and then regulates certain social relations. Of course, according to materialism, all social relations do not contain some kind of interests behind them. The law regulates social relations precisely by fixing the social interests embodied in various social relations in the form of legal rights and obligations. This is a feature further derived from the law as the adjustment mechanism of social interest relations.

Second, the basic characteristics of legal thinking

In the concept of the law has a preliminary understanding of the basis, and then discuss the unique way of thinking of the legal profession, for the law as a career for students to cultivate and form a professional legal thinking is the key to the future of the legal profession.

The so-called legal thinking refers to a professional process of analysis, judgment, reasoning, argumentation and interpretation and other activities through the specialized legal language (French), which is formed in the long-term legal practice. And the legal way of thinking is the use of legal thinking to observe the problem, analyze the problem and solve the problem of thinking stereotypes and habits of mind. In the human long-term frequent, repeated legal professional activities will gradually form a specific thinking, this thinking, once formed, will maintain and continue, and to the unique thinking style attached to the legal **** the same body. Therefore, the legal way of thinking accompanies the professionalization of law, but also is the sign of the maturity of the legal profession. Japanese scholar Naruaki Tanaka summarizes the characteristics of the legal way of thinking as doctrinal nature, past-oriented, individuality, the one-size-fits-all nature of the conclusion and the principle, unity, typology and generality of its inference. Mr. Ji Weidong summarizes it as three aspects: the spirit of defending everything according to the law, the strength of "listening to both sides" and the basis of trinitarian reasoning. Other scholars believe that legal thinking is a kind of formal justice, procedures, and formal significance of the legitimacy of thinking. Summarize the various points of view, the legal way of thinking has the following characteristics:

First of all, the legal way of thinking is a normative way of thinking, that is, all the social problems as far as possible in accordance with the universality of the form of the rules and legal procedures will be transformed into a specific relationship between the rights and obligations of the mediation. Legal way of thinking is a kind of activity of observing, thinking and judging by using legal language. Legal language is different from the general public language, it has a unique set of concepts and terminology, that is, the legal language. Generally speaking, the legal language with more accurate words, expression strives for plain, concise and clear. The use of language focuses on standardization and unity, emphasizing the relative stability of semantics. If a society advocates the rule of law, then the language of law will become widely respected language, almost can become a common language. Tocqueville said that almost all political issues in the United States will sooner or later become legal issues. The construction of the rule of law in China today should cultivate the public **** discourse of the rule of law, so that the whole society accepts the concept, consciousness, spirit and logic of thinking of the rule of law. Establish the concept of legal supremacy and authority. Legalists should first of all be able to use the language of law to think, express and deal with problems.

Secondly, the legal way of thinking is a procedural way of thinking. Legal activity does not simply take substantive justice as its only goal. And it pursues procedural justice or formal justice. For some difficult cases, "substantive justice always invites endless arguments." Thus, the rule of law can only uphold a limited amount of justice. Procedure, on the other hand, is a relatively autonomous and operates in the space of a strict system set by the state. As Ji Weidong puts it, "The inference of law is a special type of practical argumentation that is highly institutionalized and formalized. Legal reasoning takes place within certain organizations, institutions, and procedures that must strictly adhere to the rules of evidence and debate; and its argumentative techniques are specially trained to focus on the search for appropriate reasons for fair and reasonable decisions." This comes fundamentally from the nature of legal activity (especially judicial activity) i.e., passivity, neutrality, impartiality, openness, and adjudication, etc. Thus, procedural thinking is also an important dimension in realizing the loyalty of judges to the law. It is in the procedural and institutionalized space that the rational value of the objectivity of the law is fully embodied and the element of arbitrariness can be rejected to a minimum.

Once again, the legal way of thinking follows a set of strict and meticulous logic. Thinking is in accordance with certain logic and law. The legalist's way of thinking is generally speaking adheres to the trinitarian method of reasoning. Interpretation on the use of a basic concept is subsumption that connotes or subsumption, refers to the facts of the case to be decided under the legal norms constitutive elements, in order to obtain a specific conclusion of a logical thinking process. It is also the process of applying a legal norm to a specific case in order to obtain a judgment. Thus, the legal norms and facts, universal and special, past and future gap weaving together. Therefore, the professional logic of legal thinking is different from the logic of other political thinking, moral thinking and popular thinking. The logic of legal thinking in the strict system and program space to show a high degree of formal rationality and technical rationality. The essence of the modern concept of the rule of law is here. In contrast, the logic of other thinking has a clear emotional and emotional tendency.

Lastly, the legal mindset seeks conclusions that are only as acceptable as possible, but not as "true" as absolutely necessary. Therefore, the focus on the decision to justify the reasons to ensure that the justification, justified, convincing. In the trial activity this is manifested in the certainty and unitary way of thinking. This way of thinking is used to judge facts only to make a yes or no judgment, not an either/or judgment. Many issues are presented in an objective manner without value judgments. A legalist can only reconstruct the facts of a case based on the claims and evidence of the parties that fit the set procedural components. They cannot be bold in their assumptions but can only be careful in their evidence. On this basis, a decision is made. And make the conclusion is clear, either/or, not "make peace", "each playing fifty", although sometimes its appropriateness is still to be explored. Legal thinking is different from political and administrative thinking, which is characterized by "trade-offs" and "compromises". Because of this, the legal way of thinking requires a set of superior evidence and legal interpretation of the principles and techniques, in the judicial process requires the judge to give adequate reasons for the verdict.

Three, legal education and the cultivation of legal way of thinking

The cultivation of legal way of thinking is one of the important purposes of legal education. As Kirk said: law is an art, a person only after a long period of study and practice to obtain knowledge of it. By coincidence, the American judge Posner also regarded the law as a kind of practical reason, which he regarded as a "grocery bag" including anecdote, introspection, imagination, common sense, empathy, non-motivation, speaker's authority, metaphor, analogy, etc. In a word, it is a profession. In short, it is a highly professional activity. But China has never had a true legalist, and judges have never been a specialized profession. The tradition is that "the county magistrate is also in charge of justice", and judges and administrative officials are one and the same. Today, the administration of justice in China is still heavily administrativeized. Courts are often seen as part of a tightly structured bureaucracy. The degree of professionalism and specialization of the judiciary is very low. A true legal profession with a mature legal mindset has yet to be formed.

Cultivating a class of Chinese lawyers is undoubtedly an important part of realizing the rule of law. This not only requires scientific treatment of lawyers, giving them more understanding and respect, and creating a healthy social environment for the forming legal profession***similarity. More importantly, it is also important for China's jurisprudence