The law itself is perfect, but it has defects, which is inevitable. This paper intends to discuss the limitations of law from two angles: the law itself and the operation of law on practice.
First, the limitations in the process of legal creation.
The creation of law is an activity that legislators set people's rights and obligations in order to distribute and coordinate various interests in society. The creation of law is based on legislators' understanding of various social interests. While knowing that the world is knowable, we do not deny that the world is unknown. Therefore, people's understanding of the whole world is only a correct grasp of its limitations. People's reaction to a specific thing is only an approximate correct reflection to some extent and level. Professor Xu Guodong once mentioned that the law is not GAI. The so-called non-GAI nature of law refers to social relations that should be regulated by law, but not completely regulated by law. No, GAI is an understanding of the quantitative restrictions of the law. The non-GAI nature of law makes people only establish a perfect and good legal system on the basis of rational analysis. The non-GAI nature of law makes people clearly realize that the all-encompassing view of law is illusory and unrealistic. They pointed out that legislators' cognitive ability is limited and it is impossible to foresee everything in the future. Even if some things in the future are foreseen, legislators may not be able to fully incorporate them into legal norms because of their limited means of expression, so the law must not be GAI. Because of the GAI nature of law, it is impossible for law to exhaust all possible social phenomena, because there will be omissions. On the other hand, it is impossible for legislation to fully predict what might happen in social life at that time. After all, the law expresses social phenomena through concise words, and no language can be omnipotent. It cannot cover all actions and events. This is the GAI nature of law, which makes the social relations that should be adjusted by law not be adjusted by law.
Second, the limitations of the law's own attributes.
(1) lag. Law is an affirmation of the fundamental interests of the ruling class and the social order conducive to the ruling class. As a tool to affirm existing interests, law is often opposed by existing interests when some interests change, which constitutes a resistance to the development of law. At the same time, as a system of setting people's rights and obligations, law must also have stability, which is an inevitable requirement for establishing legal authority. If the law is constantly changing and extremely unstable, people will be at a loss, unable to foresee the consequences of their actions, and the law will lose its authority and certainty. The law must be stable, which means that the law is a system of rules and cannot be changed overnight. However, various interest relations in social life regulated by law are constantly developing, and the development of social relations is often faster than the change of law, which leads to the contradiction between the stability of law and social development, and this lag of law is generally not conducive to social development. If legislators always only make mature things into laws, then laws will only crawl passively through experience, which is not conducive to social development.
(2) rigidity. The rigidity of law is in terms of the formal structure of law, which is caused by the universality of law. The universality of law means that law, as an abstract norm, is binding on the subject within its effective scope. It contains two meanings: first, it refers to the abstraction of legal norms, that is, the law only pays attention to adjusting typical and important social relations, while abandoning the particularity and secondary nature of individual social relations. Second, it refers to the universality of legal norms, that is, the universality of legal objects, and the law has the same effect on all people or things within its adjustment scope. The universality of law is the requirement of the rule of law, which enables every member of society to enjoy the minimum freedom and rights, and also prevents the law from becoming a specific order and opening arbitrary doors for some people. But the universality of law also brings its disadvantages. "Law is always a general statement" is just a code of conduct expressed in some abstract and general terms, which makes the formal structure of law rigid: it can only stipulate general applicable conditions, behavior patterns and legal consequences. Law is universal, but it solves special and specific cases. It is impossible to deal with and solve all kinds of concrete and diverse behaviors, events and relationships with generalized legal norms. What the law wants to solve is a single problem with individuality, which is the rigidity of the legal form structure. * * * Sex and individuality, changeable factual relationship and legal relationship are a big problem in judicial operation.
Third, the limitations of the law in the process of operation
The operation process of law is the process of exerting legal functions. The function of law is also to realize the value of law itself. If the law can't reach the established value goal and meet the needs of society, then we say that the function of the law is limited. The function of law, like other things, is determined by the nature, quantity and structural system of its own elements, and it also shows some limitations. This is also the limitation in the process of legal operation.
1, the functional limitations of the legal code of conduct. The code of conduct function of law refers to the role and influence of law on individual behavior in social relations. It is achieved through evaluation, guidance, prediction, protection, coercion and ideological education. Due to the limitation of law's own attributes and the decision of social system structure on legal function, the function of legal behavior norms is often limited. First of all, the GAI and uncertainty of the law make it difficult for the law to evaluate, guide and predict people's behavior and its consequences. The lag and rigidity of the law also make it difficult for people's rights and freedoms to be fully guaranteed. This paper focuses on the influence of the rigidity of legal formal structure on the correct play of legal functions. As mentioned above, the law is universal. The law sets a hard standard for everyone and treats everyone equally. At this point, the law is only formal. However, social life is very different, and if universal hard standards are uniformly imposed on different situations, the just value of law will inevitably be lost. For example, if a certain regulation is violated, a fine of 1000 yuan will be imposed, which is undoubtedly too harsh for some poor farmers, while for some rich people, a fine of 1000 yuan is just a drop in the bucket, which is tantamount to giving those rich people some privileges. Fairness and justice require the same situation to be treated equally and different situations to be treated differently. However, "any right is for different people, in fact, the same standard is applied to different people, so" equal rights are unequal and unfair "[8]. Secondly, as a special way of social adjustment, law is an element of social adjustment system, and its function is restricted and influenced by other social adjustment methods and the whole social adjustment system. Legal norms must be coordinated with other social norms (such as ethics, community norms, habits, etc.). ) can give full play to their functions. For example, law is exhortation, not persuasion, and it regulates people's external behavior through compulsory external legal forms. Therefore, the law can only have an effect and influence on people's external behavior, and it can't go deep into people's inner world, so it needs moral assistance and supplement.
2. The limitation of the social organization function of law.
Law is an organic structural system composed of various norms with different properties, objects and effects. It not only has the function of regulating people's general behavior, but also bears a huge social organization function. The social organization function of law is to combine various elements or parts of a planned society into an organic whole through law. Social relations objectively need to be adjusted by law in order to get rid of pure contingency and arbitrariness and seek progress in order. However, the demand of social relations for legal adjustment is limited in quality and quantity. If the law gives too much or too much interference to social relations, it will turn management into restriction and control, thus restricting the development of social relations and leading to the super-organization of social systems. If the legal intervention in social relations is too little or ineffective, it will make the legal order fail to meet the requirements of society and make social life lack of organization. Whether it is super-organization or unorganized, it is not conducive to social development. Due to the complexity of social affairs in modern society, the social organization function of law is mostly reflected in the law enforcement activities of administrative organs, so the demand for quality and quantity of legal adjustment by social relations is often concentrated on the quality and quantity of power entrusted by the state to administrative organs. The power of administrative organs is too small, social order can not be effectively maintained, and people's rights can not be guaranteed; Excessive power of administrative organs often infringes on citizens' legitimate rights and affects the effective development of social relations. This is particularly prominent in the government's macro-control of the market. Under the single planned economy system in China, the government controlled the economy too much, which damaged the enthusiasm of market participants to some extent, restricted the normal operation of the market and the development of social economy. At present, China is implementing a socialist market economy, and it should be appropriate for the government to use legal means to carry out macro-control of the economy. As a superstructure, law should always serve its economic foundation and play its organizational function according to the requirements of social and economic development. However, it is often difficult for people to properly grasp the objective needs of social and economic relations. Therefore, in its social organization function, law often shows super-organization and unorganization in some fields.
3. The language of law and the limitations of written rules.
Legal language has its shortcomings, which leaves a lot of room for discretion, thus bringing the problem that standards are difficult to unify. Although law is a unified measure of behavior, there are many places that cannot be specified and determined specifically, including: first, provisions that require value judgment, such as: appropriate, necessary, fair and reasonable; Second, the provisions on the penalty range in the consequence analysis, such as three to seven years' imprisonment, need to be handled as appropriate. In the process of legal reasoning, the applicant's subjective will is often inseparable. Therefore, it infiltrated the irrational factors of the applicant.