Limitations of the Rule of Law?

Argument for the Limitations of Law

Chen Weidong

KeywordsLimitations of Law

Full text

There is no doubt that the law, as an indispensable system of social life, has been universally accepted by most of today's modern countries. But just as there are shadows under the sun, law as a man-made system has its own limitations or so-called defects. Edgar Bodenheimer, an American legal philosopher, once pointed out that "the defects of law arise partly from its conformist orientation, partly from the rigidity inherent in its formal structure, and partly from the limits associated with its controlling function "1 . The author tries to argue the limitations of the law by discussing the limitations of the law in covering social life, the delayed nature of the law's reflection of social life, and the compromising nature of the law's implementation process.

On the question of whether the law is the best means to govern the society, as early as in ancient Greece, there was a dispute between the theory of the rule of man represented by Plato and the theory of the rule of law represented by Aristotle. According to Plato, human beings are born unequal, and this inequality is the basis for the establishment of a hierarchical **** and state. Such a **** and state relies on the free intelligence of the best people to govern, not on laws. The differences in human personalities, the diversity of people's behavior, and the endless changes in all human affairs make it impossible for either art to formulate rules that are absolutely applicable to all problems at all times. Therefore, "the best method is not to give supreme authority to the law, but to the man who knows the art of ruling and has the talent to do so." 2 . In contrast to Plato's theory of the "rule of man", Aristotle, as a student of Plato, although he also recognized that there were indeed flaws in the law, which mainly manifested itself in the fact that "the law is not perfect, and does not prescribe all the particulars", he believed that man was the best of creatures when he had reached the state of perfection, but he was the worst of creatures when he left the law and justice behind. Where the ruler does not rely on the emotional factors of governance is always better than the emotional use of the people, and the law is precisely all the emotionless. Therefore, "the rule of law should be preferred to the rule of one man. "3 The debate between the rule of man and the rule of law - let us leave aside the question of which is better or worse - shows that even the rule of law theorists recognize that the law, no matter how detailed, cannot cover all aspects of social life.

In the essential sense, the law is the product and reflection of social life, which includes all economic, historical, cultural and other components, and social life is constantly evolving; at the same time, the law has a relatively stable character, and a law can not be changed from one day to the next after it is enacted. Therefore, relative to the continuous development of social life, the law once enacted has become "yesterday's" law, become the conservative force of social development. In this sense, the limitations of the law is manifested in the delayed reflection of social life, it is defending the established order at the same time, but also more and more become the resistance of social development, until the new social forces continue to be strong, forcing the old legal system to modify or even collapse.

If the enactment of law is the law in the sense of contingency, then the law that is realized in the reality of social life can be called the law in the sense of reality. No matter how complete the law is, it still needs to be implemented by human beings, and the so-called "law is not enough for oneself". Due to the limited and distorted subjective understanding of the world by human beings, the system and concept of law are inherently ill-considered, coupled with the intervention of various social interests and social forces, the law, as a specialized technology, is often distorted in the process of implementation, thus violating the original intent of the legislation. At this level, the limitations of the law are manifested as a compromise with the forces of social reality.

The limitations of law are themselves a proposition of value judgment, which often manifests itself in a multifaceted manner, as a professor of Moscow University puts it: the law in any part of itself can be either a life of freedom or an instrument of slavery and arbitrariness; it can be either a compromise of the interests of the society or a means of oppression, either the basis of order or an empty manifesto; both can be a reliable pillar of individual rights or legitimize despotic tyranny and lawlessness. Perhaps... The benefit and social significance of each conception of law lies in illuminating the negativity and dangerous tendencies of law itself by critiquing the weak aspects of the other conceptions of law.4 This is a value judgment on the role of specific legal systems. Our exploration of the limitations of law, on the other hand, is an exploration of its advantages and disadvantages on the premise that law is merely a way of governing society at the level of a general theory of abstraction, after abstracting from the value content of the essential attributes of its concrete legal system.

Law is a reflection of social reality, but also the product of human subjective understanding, is the manifestation of human culture, which is the indispensable subjective and objective basis for the emergence, existence, change and development of law. From the viewpoint of the long river of history, the ability of human beings to recognize the objective world is infinite, as long as human beings exist for one day, this recognition will not end. But for a particular stage of social development in the long course of history, its cognitive ability and level is limited. It is because of this contradiction between the infinity and finitude of human cognitive ability, become the epistemological root of the limitations of the law, the limitations of the law from the limitations of human cognition. As long as the contradiction between the finiteness and infiniteness of human cognition and the reality of human society's constant change and development and progress of the two major subjective and objective grounds leading to the limitations of the law exists for one day, as a reflection of them - the limitations of the law also exists for one day. Therefore, the limitations of law may be an "eternal" theme of jurisprudence.

Note 1: E. Bodenheimer: Jurisprudence - Legal Philosophy and Legal Methods, Deng Zhenglai translation, China University of Political Science and Law Press, published in 2004, page 419.

2. The Statesman, transl. J.B. Skemp (New York, 1957), 294b. cited above, p. 11.

3. [Ancient Greek] Aristotle, Politics, translated by Wu Shoupeng, Commercial Press, 1965 edition, p. 168.

4. [Russian] O-3 Leyster: "Three Legal Ideas", Foreign Law Translation Review, 1993, No. 1, p. 83.

Title of the paper Discussion on the Limitations of Law

Source of the paper Jurisprudence World

Thesis Issue No. 199601

Thesis Page No. 1-5

Thesis Classification Jurisprudence-Legal Historiography

Thesis Author Hu Shuijun

The limitations of the law refer to the law's manifestations in the process of its creation and implementation. of its drawbacks and deficiencies. It is a

frequent concern in jurisprudence. American legal philosopher Edgar Bodenheimer analyzed the disadvantages of the law from the conservative tendency of the law, the rigid form of the law and the limitation of the control of the legal norms in his book Jurisprudence - Philosophy of Law and Its Methods; Prof. Xu Guodong analyzed the disadvantages of the law in his doctoral dissertation The Fundamental Principles of the Civil Law

. Professor Xu Guodong in his doctoral dissertation

Interpretation of Principles - Overcoming the Limitations of Statutory Law

, on the other hand, from the attributes of the law itself, attributes the limitations of the statutory law to be

unpurposeful, ill-defined,

fuzzy, and lagging. Although the two scholars are slightly different in their discussions, they both believe that the law is not perfect, but flawed is an indisputable fact. This paper intends to be based on the above two works, from the creation of law, the law itself and the operation of the law and other perspectives on the limitations of the law to explore

discussion, in order to practice.

I. Limitations in the process of law creation

The creation of law is a kind of activity for the legislator to set people's rights and obligations for the purpose of distributing and coordinating various interests in the society. The creation of law

is premised on the legislator's awareness of the various interests in society. Epistemologically, dialectical materialism holds that the world is knowable, and that people can obtain correct knowledge about the

infinitely developing material world. However, at the same time, it does not deny the existence of unknown things in the world, nor does it believe that the knowledge acquired by man about the material

world is absolutely correct. On the contrary, it believes that man's cognitive activity is invariably subject to the constraints of the objects of cognition (natural, social, and spiritual objects)

, the intermediaries of cognition (tools of cognition, tools of knowledge, and tools of language, etc.), as well as the subject of cognition itself. Thus, man's knowledge of the whole world is only

a correct grasp of a certain range of its certain areas, certain things and certain processes. The human being's understanding of a specific thing is only an approximate correct reflection of a certain degree and a certain

level of it. This is the non-supremacy, non-ultimate nature of knowledge. This epistemology also runs through the legislator's awareness of the various interests

relationships in society. The law, as a product of the legislator's creative activity, is also due to the legislator's cognitive non-supremacy, non-finality and show the following

two kinds of limitations:

1, not the whole truth. Marx pointed out, "Whether it is political or civic legislation, it is only to indicate and document the requirements of economic relations.

" [1] This sentence speaks of the economic roots of the carving of the law, but it does not deny that the law is the result of people's conscious, conscious activity. Philosophically speaking

, matter first, consciousness second, matter determines consciousness, and consciousness has a relative independence, it can reflect the material world. Thus, the law is

the result of subjective participation in the objective, it is bound to bear the subjective imprint of man. Recognizing the interests of all aspects of social life is a necessary prerequisite for the creation of law, but the legislator, as the subject of knowledge, there are limitations in knowledge: first, as the object of knowledge of the social relations of the fluctuating and complexity

of the nature of the intertwined, chaotic and difficult to discern, and in the needs of people as well as to meet the needs of the various activities to promote the constant change. Secondly, the legislator's cognitive

cognition

is also constrained by his knowledge, richness of experience, limited life, irrationality in his consciousness, and technical conditions, language tools, etc., and his cognitive

knowledge, foreseeing, and expressive abilities are limited, and thirdly, to give a fixed legal form to the fluctuating social relations is no different from The legislator will find it difficult to draw a circle with a square, and the legislator will find it difficult and tricky. Fourth, the legislator, as a representative of a certain class, always shows a certain class

class tendency and class emotion. All of these will affect the legislator to the objective "economic relations" of the correct reflection. In short, the law as a set of existence

in, it can not be completely correct to reflect the requirements of economic relations, it can not be completely correct to adjust the various social relations, in this sense

in, the law is not always completely correct and reasonable. In other words, the law is non-totality, is for the non-totality of the law.

2, not pervasive. The so-called law is not pervasive refers to the social relations that should be adjusted by the law, not fully adjusted by the law. If

non-truth is the epistemological manifestation of the qualitative limitations of the law, then the ill-defined nature is the epistemological manifestation of the quantitative limitations of the law. Historically, there have been two ways of looking at whether law

is illimitable. The one that denies that law is illimitable is the negative theory. The negative theory is represented by natural law and conceptual law

. Natural jurisprudence believes that there exists an all-encompassing natural law system in the positive law, and therefore the law does not have to be impermanent, and people are able to establish a perfect and good legal system based on

rational analysis. Conceptual jurisprudence also holds that the positive legal system is "flawless" and that the law consists of a series of concepts at different levels, which are sufficient to solve all specific matters through logical deductive reasoning. The affirmation that law is ill-defined

is the affirmative theory. The affirmative theory is represented by interest law, liberal law and social law. They consider any view that the law is all-encompassing to be

illusory and impractical. They point out that the legislator's limited cognitive capacity cannot foresee all things in the future, and even if he foresees some things in the future

situations, the legislator may not be able to fully incorporate them into the legal norms due to the limited means of expression, and thus the law is necessarily ill-conceived. Affirmative and negative

Definitive theory holds one end, the author believes that the negative theory is not pertinent. The idea that reason can make all-embracing laws is just a fantasy, and it is even more arbitrary to say that human beings

can exhaust their knowledge of the whole world. At the same time, concepts, one of the elements of law, are inherently limited, and there are aspects of the living, material world that are

hard to conceptualize. Heck, the initiator of the interest jurisprudence movement, pointed out that any positive legal system is necessarily incomplete and defective

and that it is not always possible to draw satisfactory conclusions from existing legal norms on the basis of a logical reasoning process. [2] History has proved that any attempt to cover all social relations by

law is doomed to failure. Due to the limitations of the legislator's cognitive capacity and foresight, his negligence or out of caution

, the positive law created by human beings can hardly be perfect, and it is inevitably ill-conceived. This is the law's ill-considered nature, which makes the social relations that should be adjusted by the law

not adjusted by the law.

Two, the limitations on the attributes of the law itself

Marx pointed out that "the law is a definite, clear and universal norm." [3] This is a generalization of the attributes of law. Since its creation

, the law, as a relatively independent existence, has its own attributes, which embody the requirements that people place on the law. However, along with these attributes, the law

law also shows the situation of deviation from people's wishes, which is the limitations of the law's own attributes. They are manifested in the lag of law, uncertainty

and the rigidity of the formal structure of the law.

1, lagging. The law is the affirmation of the fundamental interests of the ruling class and the social order in favor of the ruling class, the ruling class will not easily allow the abolition and change of the law if it is not for its own

special interests. The law, as a tool for affirming existing interests, is often opposed by existing interests when certain interests are changed

. These constitute resistance to the development of law. At the same time, as a system that sets people's rights and obligations, the law

must also have stability. This is the inevitable requirement to establish the authority of the law. If the law is unpredictable, the extreme lack of stability, people will not be able to adapt, will not be able to foresee the consequences of their own behavior, the security value of the law will be lost. In view of this, Aristotle warned people would rather tolerate not

reasonable stability of the law, but also do not arbitrarily change the law. The necessity of stability in law implies that law is a system of

rules that cannot be changed from one day to the next. However, the law regulates the various interests in social life is constantly evolving, and the development of social relations is often faster than the law

Changes, the legislator is extremely difficult to respond to this sensitively. This creates a contradiction between the stability of the law and the development of society. "The law must be

stable, but it cannot stand still. Therefore all jurists have struggled to harmonize legal stability and legal variability." [4

] This limitation that the development of law cannot keep up with the requirements of the development of the real society, we call it the lagging nature of law. In fact, the reason why the lag of law arises

can also be traced back to the limitations of the legislator's understanding. It is worth mentioning that, due to the influence of class tendency and class sentiment, the legislator in the legislation

often exclude the form of things that do not conform to the will of the class, so as to make the mistake of "pouring away the dirty water with the children". This is the case in China, which for a long time in the past

thought that the market economy is a capitalist thing, which is reflected in the legislation tends to stunt the development of real social relations. The lagging nature of the law

is generally unfavorable to social development. If the legislator always enacts into law only what is ripe for enactment, then the law will only be able to crawl passively through experience

This is not conducive to the development of society, and the state, society and the people will pay a heavy price for it.

2, uncertainty. The law has stability, at the same time, the law must also be clear, the stability requirements of the law and the clear requirements **** with constitute the law

certainty. "The certainty of the law means that the law stipulates a stable causal relationship between a certain act and a certain consequence, fixing and legalizing a certain pattern of human behavior

." [5] Certainty of law is intended to make the rights and obligations of citizens clear and unambiguous enough for people to follow, so that they can correctly evaluate

and predict their own actions and their consequences, and guide their behavior. Legal certainty is also often recognized as a major attribute of the law, and has been listed

as one of the elements of the rule of law. However, the jurisprudential basis of legal certainty is precarious. Some have even gone so far as to say, "One can forgive a lay

person's beliefs about legal certainty, but not such false notions held by a lawyer." [6] Why, again, is the law not certain

? We can analyze the uncertainty of law in terms of its linguistic form and its historical content. For one thing, the law is expressed in words and language

, and the words and language as the carrier of the law are themselves limited and ambiguous, and their true meaning is often understood only in use, that is, some

people say, "the meaning is the usage," in view of which some people even think that the words and language are "as cunning as a snake". Since the form of expression of the law - language and text such as

this uncertainty, its expression of the content of the law is of course difficult to determine, and sometimes even ambiguous, ambiguous. Second, let us look at the United States

Country realism, one of the representatives of jurisprudence, Frank's view. Frank pointed out that "to a large extent, the law was, is, and will always

be vague and diverse." [7] Why? First, the human relationships that law regulates are variable; second, one has never been able to formulate

a set of rules that anticipate everything and encompass everything. Frank's argument is not entirely without merit, although it has a certain "rule-skepticism" about it. In short, although people are still striving for legal certainty, the form and historical content of the law make it possible to achieve certainty only to a limited extent, and legal uncertainty is inevitable. This will undoubtedly damage the security value of the law and the authority of the law.

3. Rigidity. The rigidity of the law is with respect to the formal structure of the law, and it is caused by the universality of the law. The universality of the law means that the law

as an abstract norm is binding on all subjects within its sphere of effect. It contains two meanings: first, the abstract nature of legal norms, that is, the law

law pays attention only to the typical, important social relations for the adjustment of the class, and abandon the specificity and secondary nature of individual social relations. Secondly, it refers to the

generality of legal norms, that is, the universality of the object of law, the law has the same effect on all people or things within the scope of its adjustment. The universality of the law is a requirement of the rule of law

which enables every member of society to enjoy a minimum of freedoms and rights, and which prevents the law from being turned into specific commands that open the door to arbitrariness for some people.

But the universality of law also brings with it its disadvantages. "The law is always a general statement"; it is only a rule of conduct expressed in abstract, generalized terms

This makes the law rigid in its formal structure: it can only prescribe general conditions of application, modes of conduct, and legal consequences

Results. The law is universal, but the law solves particular, specific cases, with generalized legal norms to deal with the solution of a variety of specific,

thousands of different behaviors, events, relationships, it is possible? Plato thought it was impossible, and thus he despised law and advocated the rule of man. What the law regulates is the problem of the ****ness of

social relations, but what the law seeks to solve is the single problem of each individuality, and it is

not easy to apply the ****ness to the individuality, and to reduce the individuality to the ****ness. If the flux of complex factual relations into legal relations is a major problem of legislation, then the form of rigid structure of the

law applied to a specific single case is another major problem of judicial operation, this generalized, abstract law and specific, special reality

live out of touch with the defects, we can be attributed to the rigidity of the formal structure of the law.

Third, the limitations shown in the process of the operation of the law

The process of the operation of the law is the process of the function of the law. The function of the process is the ability of the law to act on individuals and society. Function and action never

The same process is expressed from the same point of view, in terms of the thing itself means what it has the ability to do, in terms of the relationship between the thing and it means what it has the role. Because

And the function of the law can also be said to be the role of the law on social life. The function of things often reflect certain value requirements, the function of the law

also aims to realize the value of the law itself. If the law fails to achieve the established value goals, can not meet the needs of society, then we say that the law in the function

is limited. The function of the law, like the function of other things, is determined by the nature and quantity of its own elements and its structural system, which

also shows certain limitations. This is the limitations of the law in the process of operation. The following from the law's normative function, organizational function, class

rule function on this one by one to analyze.

1, the law's behavioral normative function of the limitations. The behavioral normative function of the law refers to the role and influence of the law on the behavior of individuals in social relations

. It is accomplished through evaluation, guidance, prediction, protection, coercion, ideological education and other methods and approaches. Due to the limitations on the attributes of the law itself and

the social system structure of the legal function of the decision, the law's behavioral norms function is often limited. Specifically manifested in: First, the law's ill-defined,

uncertainty makes it difficult to realize the law's role in evaluating, guiding and predicting people's behavior and its consequences. The law's non-full truth and lag also make it difficult to

comprehensively protect people's rights and freedoms. Here we focus on the impact of the rigidity of the formal structure of the law on the correct performance of the functions of the law. As mentioned earlier,

the law is universal, it sets a rigid standard for all people and treats all people equally, and in this respect it is formally just.

However, social life is very different, and to impose a universal hard and fast standard on different situations will inevitably lead to the loss of the justice value of the law. For example: violation of

a certain provision will be fined 1000 yuan, which is undoubtedly too harsh for some poor farmers, while for some rich people, 1000 yuan

fine is just a hair, which is tantamount to giving those rich people some privileges. Fairness and justice require equal treatment of the same situation, different situations are handled differently, however, "any right is to apply the same standard to different people, to apply to the fact that people are different, unequal

, and therefore "equal rights are unequal, is not fair" [ 8]. 8]. Secondly, the law as a special way of social adjustment, it is a constituent element of the social adjustment system, and its function is subject to other ways of social adjustment and the whole social adjustment system of constraints and influences. Legal norms must be

with other social norms (such as moral norms, community norms, custom, etc.) with the coordination, harmonization, in order to give full play to its function. For example: law

law is admonition, not persuasion, it is through the mandatory external legal form of regulating people's external behavior, therefore, the law can only people's external behavior

have an effect and influence, it can not go deeper into the inner world of people, which requires the assistance and supplementation of morality. From the above analysis we can see that the law

is not omnipotent, the function of the law is limited, in some cases, it also shows a certain degree of injustice.

2, the limitations of the social organization of the law

Law is the nature of a variety of different norms, objects, the effectiveness of the organic structure of the system, in addition to regulating the general behavior of the people

function, but also bear a huge social organization function. The social organization function of the law is through the law of the society in a variety of different elements or parts of the planned

combined into an organic and unified whole. Social relations objectively need the law to impose a certain adjustment, in order to get rid of mere chance and arbitrariness

, in order to seek progress. But the social relations of the need for legal adjustment and qualitative and quantitative limits. If the law on social relations to give too much or too large

intervention, will be management into a limit control, the development of social relations, leading to the development of the social system of super-organization; if the law on social relations to give

too little or ineffective, but also make the legal order can not meet the requirements of the community, so that the social life of the lack of organization. Whether super-organization or lack of organization,

are not conducive to social development. Modern society due to the complexity of social affairs, the law's social organization function is mostly reflected in the administrative organs of law enforcement activities

, and thus social relations on the quality and quantity of legal adjustment of the limit of demand is often concentrated in the state to give the administrative organs of the qualitative and quantitative limits of power. Administrative organs

Too little power, the social order will not be effectively maintained, the people's rights can not be guaranteed; administrative organs have too much power, often will infringe on the citizens'

rightful rights, affecting the effective development of social relations. This is particularly prominent in the government's macro-control of the market. In China's previous single

planned economic system, the government has too much control over the economy, too dead, so to a certain extent, damage to the enthusiasm of the main market, restricting the normal operation of the market

, the socio-economic development is also subject to certain limitations. Currently, China's implementation of socialist market economy, the government uses legal means of economic macro

control should also be moderate. The law as a superstructure, should always serve its economic base, should be based on the requirements of social and economic development to play its organizational function

, however, people's objective needs of social and economic relations is often difficult to grasp, and therefore, the law in the function of the social organization of social organization is also often shown

in some areas of the super-organization and the lack of organization.

3, the limitations of the class rule function of the law

Law is the embodiment of the will of the class **** with the power of the state, of course, has the function of class rule. And the law's social organization function, the law

Law's class rule function should also have a limit. It depends on the state of class struggle in a country, otherwise, exceeding the limit will produce many disadvantages. First, the social organization function of the law and the class domination function of the law should be emphasized in different periods of social development. In a period when the class struggle is prominent, the class domination function of the law should be strengthened; in a peaceful climate, when the class struggle is moderate, the social organization function of the law should be strengthened

. If the class-ruling function of the law is given an untimely prominence in any period, this will not only undermine the overall civilization of human society, but will also retard

the development of the economic base of the ruling class. Secondly, the object of class rule is the enemy, not the people, and it would again be obviously wrong to practise class

rule even within the people at large. Thirdly, the law as a system should be relatively independent, in a state governed by the rule of law, the law should be authoritative

, and no group, organization or individual should be under the authority of the law. But the class rule function of the law often highlights the political elements of the law,

some times even make the law subordinate to politics, which is extremely harmful to the rule of law. At the same time, the law as a carrier of certain values, always pursuing the law

their own intrinsic value, but the will of the ruling class must always be consistent with these values, when the ignorant, evil class use the law for the benefit of a few rulers

interests, mankind *** the same value will be lost again.

Notes:

[1] The Complete Works of Man, Volume 4, P122

[2] E. Bodenheimer, Jurisprudence - Philosophy of Law and its Methods, Huaxia Publishing House, 1987, P137

[3] The Complete Works of Man, Volume 1, P71

[3] The Complete Works of Man, Volume 1, P71

. p>[4] [U.S.] Roscoe Pound "Legal History Interpretation" Huaxia Publishing House 1989 Edition P1

[5] Xu Guodong "Explanation of the Basic Principles of Civil Law - Overcoming the Limitations of the Statutory Law" China University of Political Science and Law Publishing House 1992 Edition P136

[6] Zhang Naigen "Outline of the History of Western Philosophy of Law P291, 1993 edition, China University of Political Science and Law Press

[7] Zhang Naigen, "An Outline of the History of Western Philosophy", 1993 edition, China University of Political Science and Law Press, P291

[8] Selected Works of Vladimir Lenin, Volume 1, P250

(Author's organization: Zhongnan University of Political Science and Law)＊

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