Zhao Xun, Wu Yong.
(Hunan University Law School, Changsha, Hunan 4 10082)
Abstract: The research object of jurisprudence is extremely complicated, and the theoretical system of jurisprudence is also extremely complicated. The Absence of China's Legal Theory System
The lack of research and combing makes the teaching and textbook system of jurisprudence in China extremely chaotic. The most instructive theory in the western legal theory system is Sanfen.
Generally speaking, the theoretical system of China's jurisprudence should be a unity composed of ontology, axiology and operation theory (including operation environment).
[Keywords:] jurisprudence; Trinity theory; Comprehensive theory; axiology
[China Library Classification Number] D90 [Document Identification Number] A [Document Number]1008-1763 (2005) 05-0122-03
On the theoretical system of China's jurisprudence
Zhao Xun, Wu Yong.
(Hunan University Law School, Changsha 4 10082, China)
Abstract: The research object of law is extremely complicated, so is the theoretical system of law.
Reese Prudence. The lack of research on China's legal theory system leads to confusion and confusion.
Integration in jurisprudence textbooks. The most important reference in western jurisprudence
The system is a dichotomy and a synthesis method. Theoretical system of jurisprudence in China
It should be a unity composed of ontology, axiology and operation theory.
Keywords: jurisprudence; Trigonometry; Comprehensive law; Value theory
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Based on the general theory of law, an extremely complicated social phenomenon, and homosexuality
Jurisprudence with problems as the research object is extremely complicated. English jurist, huh?
Reese described: "jurisprudence is a bag of miscellaneous things, about all kinds of laws."
All kinds of common ideas can be put into this bag. What is the law for?
What does the law want to achieve? Should we attach importance to the law? How to change the law?
Become? Can we abolish the law? Who created the law? Where can we find the law?
Law? What does law have to do with morality, justice, politics, social practice or naked force?
What does it matter? Should we obey the law? Who does the law serve? Wait, this is
This is a question contained in general jurisprudence. People can ignore these problems, but this
These problems will not go away. "(1) the famous American jurist Bodenheimer also described.
From a sexual point of view, law is big, with many halls, rooms, concave corners and corners.
Summer, at the same time, I will use searchlights to illuminate every room, concave corners and corners.
Angle is extremely difficult, especially due to the limitation of technical knowledge and experience, lighting.
This is especially true when the system is imperfect or at least incomplete. "China jurisprudence.
Professor Su Li also pointed out: "Jurisprudence is about social phenomena called law."
Philosophical thinking on basic issues, but the concept of law is not true.
We can put forward many definitions of explicit reference, but none of them can.
No more, no less, it includes what we intuitively think of as "law".
Will become a phenomenon. The boundary between legal phenomenon and non-legal phenomenon is blurred, even
There is no boundary at all. So the so-called law is still about law.
The fundamental problem (about law) is not fixed, but related to our purpose.
Interest is a kind of judgment, a kind of knowledge, and people's interest will change with the specific society.
Different factors such as social system and cultural tradition will follow us.
The discovery of the potential influence relationship between various social phenomena has changed. Therefore,
Jurisprudence has no definite and unchangeable research object. "②
However, the overall complexity of jurisprudence revealed by the above arguments does not
It has not been widely understood and paid enough attention by China jurists.
In recent years, most jurists in our country mostly stay in the study of jurisprudence.
X
①
② Su Li: "What is jurisprudence? Published in China Review (Hong Kong)1May 5, 1995.
Harris: Principles of Legal Philosophy, English version 1980, p. 1, quoted from Shen Modern Western Jurisprudence, Peking University Publishing House, 1992.
[Date of receipt] July 7, 2004
[Author Introduction] Zhao Xun (1962-), male, born in Wucheng, Shandong Province, is an associate professor at the Law School of Hunan University, with a doctorate in law. Research direction: jurisprudence 1.
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A specific and specialized aspect, as well as the research object and theoretical subject of law.
Many related disciplines, such as departments, lack sufficient argumentation and basic problems.
The study of points. So ",what is the fundamental problem of our country's law or about law?
The fundamental problem is that we don't seem to have our own concepts and opinions, so
Have no tradition of their own. "①
This makes jurisprudence into an embarrassment: civil law as a departmental law and
Criminal law has a solid and mature person as the basic theory of law in this department.
"General Theory of Law" and "General Theory of Criminal Law" make the laws of this department more mature. Ironically,
The taste is that as a guiding role of departmental law, it is called "in law"
The jurisprudence of law itself lacks a solid and mature introduction to jurisprudence, that is, the lack of
Lack of mature "basic theory of jurisprudence", but still "naive". Like law.
The first sentence of the textbook is not about the concept of "jurisprudence", but about "jurisprudence"
Concept; The introduction to jurisprudence talks about "introduction to law", and jurisprudence is not clear; law
What is the logical starting point of Neo-Confucianism? What are the components of jurisprudence?
What is the logical relationship? Not clear; The teaching and textbook system is extremely chaotic and has a huge content.
Miscellaneous (this is an inherent feature of jurisprudence) and lack of relevance (this should not be jurisprudence
Learning is innate, but lack of research and combing), which makes law students study jurisprudence.
I am generally confused in the process of learning. A freshman majoring in law who is determined to be a legal person.
Born after listening to the advice of seniors that "law must be learned well", but in law,
Under the attack of abstract and obscure language, I still study the textbook patiently.
After two times, I was at a loss: "What does jurisprudence do? What is jurisprudence?
Internal clues? "-this can't blame the students, because it is decided by the students and the general.
Textbooks, which are regarded as the carrier of truth, are not clear in themselves.
But the problem is, as a highly scientific theoretical discipline, it must be
It is necessary to clarify and improve its theoretical system. This system needs to be studied clearly.
Object, substantive research content, internal logical structure. A discipline, a theory
The scientific nature of the theory lies in its internal relations and laws, which constitute a strict
A complete theoretical system, if these requirements are still vague, indicates this research.
The family has not yet formed, or it has not yet fully formed.
It is very important for me to study how to establish law and what kind of law to establish.
Contemporary jurisprudence in China has very urgent theoretical and practical significance, but jurisprudence
Many people feel that there is no breakthrough in jurisprudence research. Economic law is based on construction.
Build your own basic theory as a breakthrough in discipline construction, hoping that the discipline will be independent.
The recognition of orientation, the clarification and combing of the theoretical system of jurisprudence, and the establishment of mature "law"
Jurisprudence in Neo-Confucianism (the basic theory of jurisprudence) is not the study of jurisprudence? "
A breakthrough in research? Furthermore, strengthen and expand the introduction of jurisprudence, especially jurisprudence.
The teaching power of scientific theory system should not be a sudden relief of confusion in law teaching.
Break?
Second, the content of modern western jurisprudence
Important theoretical research of system
Since the second half of19th century, western jurists have paid close attention to the content and style of jurisprudence.
There are different opinions on the understanding and elaboration of the department, and there are many opinions and ambiguities, which can be summarized.
There are dichotomy, trisection, quartering, synthesis, polysemy and so on. But on the author
It seems that the most representative and meaningful "stones from other mountains" are the three-point method and the comprehensive method.
He said.
Dichotomy holds that the content and system of jurisprudence should be composed of formalism, fact,
Value theory. There are two ways to express this division. One is an Italian jurist.
Del Vecchio believes that jurisprudence includes three areas: logic.
Series theory (defining laws by their logical universality), or studying laws.
Universal concept (equivalent to formalism); Phenomenology (exploring the origin and history of law)
General characteristics of historical development); Or explore the history of human legal development and its laws.
Sex (equivalent to fact theory); Deontology (according to the theory of justice from "pure reason"
On evaluating existing laws), that is, evaluating existing laws by exploring justice.
As its standard (equivalent to the theory of value). ② The second one is Encyclopedia BritannicaNo. 15.
According to 10, jurisprudence should be divided into "three main parts": 1).
Legal analysis-define and specify some methods for terms and understand their logical conclusions.
Structurally, the legal system is an independent system; 2) Sociological law-that is,
Social problems in jurisprudence involve the actual synthesis of laws that safeguard a specific society.
Effect; 3) Justice theory-mainly based on the theory, goal or purpose of law.
Evaluate and criticize it. Obviously, the second expression is more typical.
Discussion on the division of formalism, fact and axiology.
And the unification (synthesis) represented by Hall and edgar bodenheimer.
The main theoretical trend of jurisprudence is to try to combine analytical law, sociological law,
The viewpoints and methods of natural law are unified, and under the unified system, the package
It includes legal formalism, factual theory and axiology. Hall identification
It is a fallacy to explain the jurisprudence of complex phenomena with a single factor.
Therefore, in order to avoid the value factors, formal factors and factual factors in jurisprudence theory.
The isolation of elements must create a "unified jurisprudence". So the laws of nature,
The viewpoints and methods of analytical law and sociological law are unified. Bodenheimer
He said: "The experience of human history tells us that it is impossible to rely on any single and unique
Explain the legal system to factors or reasons. Law is a complex structure.
Miscellaneous network, and the task of jurisprudence is to put all the clues that make up this network
Woven together. And this jurisprudence can only be' comprehensive jurisprudence' ". 4 visible,
Synthesis theory expresses dichotomy from the perspective of convergence (synthesis); The dichotomy is
From the perspective of dispersion (three points) to express the comprehensive theory, the jurisprudence they advocate is
The specific content seems to be consistent.
Third, the theoretical content of China's jurisprudence
My opinion on system integration and carding
From this, we can realize the theoretical trend of the development of legal culture in the world.
Potential academic trends and methodological enlightenment: analytical law, natural law and sociology
These three academic orientations of law are not only unique phenomena in the development of western law,
They should also be reflected in the legal development of socialist countries, because
They profoundly reflect the inherent general laws of law itself. Japanese
My wife Rong, master of law, concluded: "The ideal law should be realized without inquiry."
Learning (natural law) is blind and does not accompany the practical exploration of law center.
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②
③
④ Bodenheimer: Jurisprudence-Philosophy of Law and Its Methods, Huaxia Publishing House, 1987, p. 159-200.
See General Law, Knowledge Publishing House, 198 1 Edition, pp. 67-68.
Del Vecchio: English translation of legal philosophy 1953, pages 2 and 4.
Su Li: What is jurisprudence? Published in China Review (Hong Kong)1May 5, 1995.
5. Zhao Xun et al.: "On the carding of China's legal theory system"
1994-2009 China Academic Journals Electronic Publishing House. Copyright ki.net.
(Social law) is an empty law (analytical law) without accompanying legal constitution.
Is powerless. In this regard, we believe that the content of jurisprudence in China should be the main one.
It should be a unity composed of ontology, axiology and operation theory.
The ontology of law. Fundamentally explain what is law, including the concept of law,
Essence and characteristics; The form of law; The structure of law; Legal adjustment mechanism; The origin of law and
Development. This is the research scope of analytical law.
The axiology of law. Scientific theory comes into being because of existence.
Meaning and value can reflect and meet certain social needs and create a law.
Implementation also has its clear purpose. Evaluate the role of law, law
Value has many manifestations, including justice, fairness, freedom, equality, order and efficiency.
Wait a minute. This is the research scope of natural law.
Legal operation and environmental theory. Law exists in people's social practice.
Practice is the process of legal operation. Throughout the overall implementation of the law, the operation of the law
The operation of banks has a mechanism, and the operation of laws is a logical process and a system.
System engineering, the main links are: legislation, law enforcement, justice, law-abiding and law popularization.
Law operates in a certain social environment, and law and social phenomena are interactive.
Relationship. The social environment related to the operation of law is mainly political environment and economic environment.
Environment, moral environment, scientific and technological environment. Essentially, it is the cultural background of law. this
It is the research scope of social law.
The determination of the theoretical system of a scientific discipline should not only be divided into its components.
Capacity, more importantly, clarify the logical relationship between these contents. How to understand
What is the relationship between the above three sections? According to the scientific theoretical system
The construction must follow the principle of unity of historicity, logic and jurisprudence.
The establishment of his theoretical system should first be the logical starting point of establishing his theory. what
Is it the logical starting point of jurisprudence? We believe that the logical starting point of jurisprudence is
What is the law? Because "law" is to "jurisprudence" what "commodity" is to "economy"
"Learning" is fundamental, substantial, decisive or influenced in law.
The most popular, profound and authoritative basic concepts in legal culture are also necessary.
The cornerstone or skeleton that permeates the legal culture affects all legal relations.
If we think carefully, we can find that "what is law" is really learning and research.
Jurisprudence, or more accurately, the first, core and basic proposition of jurisprudence.
The theme of neo-Confucianism. Other contents and problems in jurisprudence can be viewed in this way.
Logical extension and concretization of the theme. In a sense, jurisprudence is research.
A discipline that studies the basic principles of what is law. So "what is the law", this
The seemingly simple but profound theme has won the lasting attention of jurists. hero
Hart, a famous jurist in China, wrote in the first chapter of the Concept of Law: "Indecision has been going on for a long time."
Problems, the confusion of legal theory ",the first sentence reads:" In the relationship with human beings,
There are few customary questions like' what is the law'.
It has been put forward again and again and used by serious thinkers in various strange ways.
Special, even anti-theoretical answers, even if the ancient and medieval customs are omitted.
Thinking about the "essence" of law, but only paying attention to the legal theory in recent 150 years, I
Students can't see that any other subject is studied as an independent subject system.
This situation. According to the previous discussion: the ontology of law is to fundamentally answer the law.
What is, and the logical starting point of jurisprudence is "what is law", therefore, jurisprudence
The logical starting point of is consistent with legal ontology in connotation, and legal ontology can
As the logical starting point of jurisprudence, the question of "what is law" lies in formalism.
Magnification on the horizon (from the perspective of analytical school).
Clarify the logical starting point of jurisprudence, that is, fundamentally answer what is law.
After that, we should further answer the question of what the law should be, that is, what the law should be.
What it should be and why. This question is about the creation and practice of law.
The direction and goal of giving is the life and soul of law and the positive value of law.
Pursuit makes law full of vigor and vitality.
Answered the ontological question of law, what should the law be, and the questions that should be answered further.
The practical problem of law is how the law works in practice. Research on this problem
The internal logic and mechanism of each link and stage in the process of legal operation, and how to
Through the creation and implementation of the law, the law is transformed into real social life, thus realizing
The adjustment of current laws to social life. In addition, law belongs to the big system of social life.
A subsystem and other social systems are the external environment of the legal system. Jurisprudence is not
However, in order to study the internal relations and mechanisms of law, we must study the law and the external ring.
Relationship and mechanism of environment. In essence, the theory of environmental law can be summed up as operational theory, and the answer is
How does law work in society?
From the ontology of law to the theory of value, to the theory of operation and environment, it is jurisprudence.
The basic content of. Ontology is the foundation of jurisprudence, and axiology is jurisprudence.
The soul of learning is expressed from the static state; Driven by operational theory and environmental theory.
The development of jurisprudence in the country makes the legal movement and become a social reality. the former
Talk about the composition and purpose of law, while the latter talks about the operation and law of law. the science of law
This logical structure conforms to the development history of jurisprudence itself and people's understanding of law.
Epistemology of neo-Confucianism. The legal system is the historical and logical essence of law.
Unity also embodies the theoretical thinking process from abstract to concrete. law theory
The arrangement of this theoretical system will be conducive to the study of jurisprudence by students majoring in legal interpretation.
Confused.
124
(1) quoted from Duan Kuang's Japanese Civil Law Hermeneutics, Civil and Commercial Law Series, Volume 6, Law Press, 1997, pp. 354-356.
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