Help me find articles about law and freedom.

Abstract: The law is conservative, but the way given to it by modern society is open and free. How to make the conservative law take the road of freedom without losing its advantages is the problem to be discussed in this paper. The starting point of this paper is neutral conservatism. Then it analyzes the antinomy of conservatism as advantages and disadvantages and the weakening trend of conservatism. Finally, drawing lessons from western conservatism theory, I try to put forward the coordination means between conservatism and freedom.

Keywords: conservatism, conservative tendency, weakening, integration

Analyzing oneself is something that human beings enjoy. If natural people are barbaric, then social people are relatively civilized. If we subdivide it, we will find that social people are conservative, moderate and radical. According to the social contract theory of classical natural law school, these three kinds of people will reach an agreement (contract) for a peaceful life. Conservatives and moderates often form camps to negotiate with radicals out of their inner desire for security. The two sides made concessions and compromises based on the gap between their strengths (initially this strength was reflected in the number of people), which caused the conservative tendency of the agreement. As the carrier of this agreement, law is bound to be conservative (conservatism here is a neutral concept with no value involved). Of course, conservatism is only one of the characteristics of law, which is usually understood as stability and clarity in traditional legal research. Law must change with the change of society, otherwise it will become a pile of old documents. Then, in this modern and post-modern era, how to face the challenge of conservative law and its practice is a question worthy of consideration by every legal person. As a member of the legal empire, the author also follows this idea to write this article.

First, the conservative tendency of the law.

If there is a midpoint between conservatism and freedom, then the law lingers between conservatism and midpoint for a long time, but it will never reach the other side of conservatism. This is the conservative tendency of the law. Although the law is a highly beneficial social system formulated by human beings, it is not so flexible because of the non-supremacy of the cognitive power of the makers and the constraints of social development. As Bodenheimer pointed out, "the law puts forward social policies at a specific time and place through constitutional provisions and statutory laws, or binds current judges through precedents, thus highlighting a conservative tendency." ? Generally speaking, the conservative tendency of law is mainly reflected in the following three aspects: standardization, application and effect.

The 1. specification reflects the conservative tendency.

Different from general norms, legal norms follow a strict logical pattern: behavior pattern+conditional hypothesis → consequence reduction, which provides a big framework for the conservatism of law. According to the content of norms, legal norms can be divided into the following three categories: authorized norms, prohibited norms and mandatory norms. These three types of norms each follow a certain pattern, among which the pattern of authorized norms is: exercising the rights of ××××. Semantically, "neng" only represents a possibility, not a reality. The exercise of rights often brings benefits, which can be abandoned, so the authorization specification also contains another meaning of giving up rights. From the mode analysis, this norm has certain openness, and also reflects the tendency of subject freedom. Unfortunately, the proportion of such norms is very small, and the number is very small, which objectively cannot alleviate the conservative tendency of the whole legal norms. The prohibitive norm is another face: it is forbidden to engage in xx. Obviously, norms are expressed in the form of negative imperative sentences. It can be said that the exclusion method is adopted, and its connotation and extension are very certain. The integration of the overall norms reflects its absolute conservatism. Then look at imperative norms; It must be XXX. Contrary to the prohibitive norms, it adopts affirmative imperative sentences, and "have to" shows the necessary mandatory meaning. In addition, the determination of its connotation and extension shows certain conservatism. The whole legal norm composed of three GAI norms is impeccable in theory, but in reality, the law is not GAI, that is to say, it is difficult for the law to cover all social relations because of the non-supremacy of legislators' cognition. In view of this embarrassing situation that the supply of law is in short supply in reality, the analogy of rights based on authorized norms is adopted to make up for it, but this method is limited to the presumption of rights, and it is impossible to infer prohibitive norms and imperative norms in this way. It is simply a drop in the bucket to make up for the conservatism of the law by expanding the disguised coverage of a kind of non-dominant norms, and of course there is nothing we can do, and there are still great differences on the presumption effect of such rights. Therefore, under the premise that authorization norms have not yet occupied a dominant position, the law shows a strong conservative tendency both in norms and in reality.

2. Conservative tendency in application.

"The law is insufficient", and the law is ultimately applied by people, in which the applicable role of judges dominates the application of the whole law. Cicero, an ancient Roman thinker, once said when explaining the relationship between law and consul (judge): "Consul (judge) is a talking law, and law is a silent consul (judge)". This is enough to reflect the conservatism of the judges of the Roman Empire at that time. With the improvement of legislative technology, judges' conservatism gradually turns to conservative tendency. This can be seen from the dispute between strict rules and discretion in the middle of19th century to the final establishment of relative discretion in the German Civil Code at the end of19th century and the beginning of 20th century. Conservative tendency not only inherits the prevention of human weakness by strict rules, but also maintains certain flexibility by using relative discretion. The process of law application, that is, procedure, can best reflect conservatism, which shows the conservatism of procedure. The procedure is gradual, and it is not allowed to go beyond the applicable law of the procedure. There is a French proverb in Britain that "the old road is the safest". In order to avoid unnecessary mistakes, we have to think honestly according to the procedure and follow the precedent that conforms to the past, which is bound to be conservative. Under the guidance of empiricism philosophy, the conservative tendency of law application is inevitable.

3. The actual conservative tendency.

Logically speaking, under the premise of conservative application of conservative norms, only conservative application effect can be obtained, and the application effect of law will inevitably show a certain conservative tendency. The legal system is mainly a conservative system, and jurists tend to take a conservative view. ? The purpose of law is to maintain social order. When disputes between individuals and collectives need to be dealt with by law, the purpose of law is to protect the existing rights system. If someone infringes on the rights of others, they should make up for the damage of others or make compensation, at least to ensure that the rights of the victims will be respected in the future, and even pay the price of criminal punishment. In this case, the effect of law is conservative, because it is protecting and restoring the old order, aiming at maintaining the stability of social relations and the orderly development of society.

Second, conservatism: the pros and cons of antinomy

If the conservatism mentioned above is neutral, then this paragraph is about the value of conservatism: is conservatism an advantage or a disadvantage?

From the etymology of the word "conservative", there are two meanings of "conservative" in Chinese: 1. Avoid losses; 6. Keep the old state; Do not strive for progress. The conservative comment in Britain is: 1. Agree with the established social order; Don't like change (especially sudden change ⒉ not show ⒊ care.)? In both Chinese and English, the word "conservative" has the meaning of maintaining tradition and keeping the old state, but it is difficult to define the old state because there are many levels of standards to distinguish the old from the new. The old belongs to the past, the past, that is, the past. First of all, it is a concept of time, and then the utilitarian standard becomes a concept of value. It is inevitable to be conservative in the concept of time, and the so-called connecting link between the preceding and the following. Holmes once said, "The life of law is experience, not logic". Law is a kind of experience, and experience needs to be repeated, which is bound to reflect conservatism. In the concept of value, conservatism is divided into two parts. Conservative things are bound to lack innovation and conservatism, but conservatism has the special attribute of law-stability. Conservatism is quite attractive at this point. Laws must be clear and predictable in order to be observed by people; The law must be stable to make people believe. These are all caused by the conservatism of the law and are indispensable qualities of all laws. Law is impermanent, that is, it cannot be. Conservatism can maintain the stability and clarity of law. On the other hand, the stability of law will lead to the rigidity of law. Bodenheimer saw this clearly when discussing the disadvantages of the law. He said: "once the legal system has established a plan of rights and obligations, then for the sake of freedom, security and foresight, we should try our best to avoid constantly modifying and destroying this system." However, when the established law conflicts with some changeable and important social forces, the law must pay the price for this stable policy. " ? The choice of conservative value judgment is often confusing. When stability and security are considered, personal justice and GAI will inevitably be sacrificed; If flexibility is the primary value, the law will lose its standardization and rigor. The dilemma of the choice of legal value stems from the fact that the law has many responsibilities, and these responsibilities conflict with each other. Conservatism helps to prevent the weakness of human nature, eliminate human factors as much as possible, provide security for the law, and enable the law to act on its own. However, the law also has the responsibility to adapt to social changes, which is contradictory to its conservatism. This responsibility also requires the introduction of dangerous human factors into legal operation. Legal conservatism based on the inertia of preventing human weakness, on the one hand, must pursue safety, on the other hand, it has to sacrifice safety for flexibility, which is the deep-seated reason why legal conservatism is the contradiction between advantages and disadvantages.