Speaker: Chia Tang, Hou.
Part I Reporter: Hou
About the author: The author of this book, Professor Virginia Shore, works at the University of Virginia Law School and once taught at the Kennedy School of Harvard University. She is a famous constitutional scholar and jurist in contemporary America. She is famous for studying the First Amendment of the American Constitution, and she is also a representative of "new formalism" in the field of law.
A brief introduction to the views of this book
The focus of this book is whether the legal group has a unique way of thinking, including legal argumentation, legal decision-making and legal reasoning. The author believes that the unique way of thinking of legal persons does not come from legal knowledge and professional skills, nor from its unique reasoning form, but from the obedience of legal groups to authority. The so-called authority refers to the precedents and statutory rules under the background of Anglo-American legal system. The reason why authority is called authority means that its effectiveness does not come from the rationality of its content, but is determined by its independent source and status. Therefore, the conclusion drawn by the legal team according to authoritative reasoning may be the solution to the problem, but after comprehensive consideration, it is not the best solution in this case. This unique way of thinking makes the law itself have remarkable characteristics, that is, formality and generality, which is precisely the core feature that distinguishes the law from other things. Therefore, the law is generally highly abstract, which summarizes a large number of practices in practice and extracts the most appropriate solutions, which also means that the general treatment mode of law can not handle some special situations. This is manifested in the fierce conflict between the literal meaning of the law and the legitimacy behind it at the edge of the law. However, the author believes that in the long run, the best way to get the largest number of correct decisions is not to seek the optimal solution in a case, but to ensure that the macro-level institutional value in the system is the optimal solution suitable for practice. After all, in most cases, solving problems is more important than solving problems correctly.
In addition, the author puts forward legal realism and questions the conclusion that "decisions are made by authoritative reasoning". The author believes that most judges have reached a tendentious conclusion before asking about the law, and this preliminary judgment often constitutes the core of the case conclusion. However, this initial judgment does not come from within the law, such as cases, jurisprudence and written laws, but from the judge's personality, policies, public opinion and even the judge's mood. Usually, many highly specialized and irrelevant factors play a fundamental role in determining the legal result. Therefore, under normal circumstances, judges draw some conclusions under the influence of many non-legal factors, and then seek legal materials such as cases and statutory laws to provide ex post facto justification or rationalization basis for their judgments. For judges in a complicated and scattered system of rules, this kind of defense is often fruitful. Realists believe that judgments based on non-legal reasons need to be proved by traditional legal terms, but this kind of legal evidence can almost always be used to prove conclusions based on other reasons, no matter what the conclusions are. If the judgment supporting the plaintiff can be justified by citing standard legal sources, and the judgment supporting the defendant can also be justified by citing standard legal sources, then in fact, the law is not solving disputes.
This paper holds that the core chapters of the book are four chapters: rules-law and other fields, practice and problems of precedents, authority and authority, and challenges of legal realism. The first three chapters focus on two forms of authority, namely, precedent and the operation mode of rules. In the next chapter, the author responds to the challenge of legal realism to the view that rules and precedents determine cases. The remaining chapters can be classified into rules and precedents, such as "cost law interpretation", "making laws by using rules and standards", "analogy application and abuse", "judicial opinions" and "common law concept", which are further explanations of precedents. Therefore, the following will focus on the key contents of the rules, authoritative chapters and the challenges faced by legal realism.
Second, the universality of the rules.
Behind every rule, there must be its value pursuit and normative purpose. Because the fuzziness and subjectivity of normative purpose make it impossible to solve practical problems in a normative way, legislators quantify it into rules in words to make it operable. Therefore, although the rule is only a superficial expression of normative purpose, its expression is very important, and it is this expression that makes the text a rule with legal effect. As the author said, the "regularity" of a rule depends largely on the language used in the rule, and the text of the rule is not just a transparent glass window leading to the legitimacy behind it. In general, the meaning of regular words is consistent with the legitimacy behind them, and there is no obvious conflict between them. The public can use rules to solve problems without obstacles, and both parties recognize the results. Therefore, judicial decisions are mainly used to solve difficult cases, and both parties to the cases accepted by the court think that they have a reasonable chance of winning. At this point, the author thinks that we have reached the fuzzy edge or shadow area of the rule, and we may have to consider the purpose behind the rule to decide whether to bring a certain situation into the edge area of the rule, so as to apply the rule.
In practice, it is a common phenomenon that there is a conflict between the conclusion clearly stipulated in the text of the rules and the conclusion implied by the reasons behind the rules. For the purpose of standardization or justification, the rules give up the optimal solution of the case and choose generality and formalization. Just because the rules are general, the generalized treatment it contains may not be applicable to some special situations, and the provisions may be too wide or too narrow, or even too wide and too narrow at the same time. This paper holds that strictly observing the literal meaning of rules means injustice in some cases, but it is precisely the standard that distinguishes law from many decision-making methods. Of course, unfairness is not the value pursued by the rules, but for the sake of fairness in a more general sense, the unfairness of individual cases is worth giving up.
Third, the non-selectivity of authority.
Rules and precedents are two forms of authority, so why it is necessary to elaborate the essence of authority. In other fields, our judgment is based on the content of the cause, not the source of the cause. For example, I eat fruit every day because it is good for my health, not because it is based on the instructions of a third party I recognize. The author calls this reason the substantive reason. Generally speaking, this content-based reason can only be called substantive reason when one actually believes in the reason of one's behavior. However, the essence of authority does not depend on this substantive reason, and its convincing reason is based on the source and status independent of its content. In legal practice, even if a judge disagrees with this power, he must use it with his "identity", which is the basic operation mode of power.
However, it is worth pondering whether this absolute obedience to authority is reasonable. There is a lot of controversy about this issue. The essential reason lies in the authority of authority or its stable position? In practice, authority is embodied in laws and regulations, precedents or judicial opinions. These figures are authoritative, often not because of their sources, but because they also have convincing reasons. Authority with substantial reasons often has a stable position, and this authority is more easily accepted by the public. However, according to this paper, these convincing authorities based on content are not enough to become authorities. After all, absolute obedience to authority is not based on content. As mentioned above, the typical feature of legal activities is obedience to authority. Specifically, judges will make different judgments based on authority, which is the most essential value of authority. Replacing substantive reasons with authority is still the cornerstone of legal activities.
In addition, the formation process of authority in this book is also worthy of our deep thinking. Generally speaking, authority can gain its convincing status simply through legislative procedures. But more commonly, the authoritative position of authority is the result of a continuous informal process. In this process, when some sources are repeatedly used and accepted, it keeps accumulating authority. When writing a paper, we usually quote a lot of literature, which is why the teacher advised us not to quote some publications. Because the effect of "recognition rule" is involved here, when a rule is continuously cited by legal groups in a decentralized and nonlinear way, it may arouse an uncontrollable expansion process because of its legitimacy.
Fourth, the challenge of legal realism.
In this semester's course "Methodology of Intellectual Property Law", teacher Yin (formerly working in the Supreme People's Court) made it clear that when a judge decides a case, he often draws a conclusion in his mind based on "legal sense". This way of judging cases completely violates the procedures taught in textbooks, giving people a sense of absurdity and distrust. But in practice, the judge made a judgment based on this explanation, and there was no mistake, which proved that this reasoning method is suitable for practice. The so-called "sense of law" can be understood as the experience summed up by judges in long-term trial practice. But it is undeniable that, as the author said, because the sense of law is the judge's intuitive judgment, it will inevitably be influenced by non-legal factors. In extreme cases, an experiment by a scholar shows that the adjustment of lunch time has a great influence on the judge's judgment. This shows that judges, as human beings, are bound to be influenced by hormones in the body, and the influence of external factors can not be ignored.
At the same time, this book suggests that judges will find a proper basis to "package" their conclusions in the sea of written laws or precedents after drawing conclusions according to their own intuition. This conclusion, seemingly absurd, does not actually harm the fairness of the law. In the case of justification, it actually makes up for the unreliability of the judge's intuition. However, the author points out that due to the complexity of precedents and the huge number of written laws, conclusions chosen for non-legal reasons will always find some reasonable legal legitimacy. In this way, when dealing with some difficult cases, no matter what conclusion the judge draws, there will always be evidence to support it. This paper holds that the so-called difficult cases must be because they cannot rely on legal basis to draw accurate conclusions. At this time, the judge is bound to be influenced by social policies or public opinion, and the conclusion drawn has nothing to do with the law, but is purely a matter of policy choice. It is understandable to seek legal conclusions afterwards. After all, the Supreme Court of the United States will inevitably make judgments based on non-legal factors when it comes to issues with strong ideology such as abortion, death penalty and affirmative action.
Verb (abbreviation of verb) conclusion
This book is very readable, and the question of whether a legal person has a unique way of thinking and reasoning has caused a great impact on me and has been greatly inspired. In addition, some problems in the book are not further elaborated by the author. As mentioned above, the author discusses them through legal reasoning, but legal reasoning is not the same as legal thinking. For another example, the author did not give a clear response to the challenge of legal realism. Generally speaking, the logical structure of this book is clear, supplemented by a large number of cases in life, giving people another angle of thinking.
Part II Reporter: Chia Tang
(A) the main points of this book
The uniqueness of legal person's thinking (legal reasoning) lies in its reasoning based on authority (rules or precedents, etc.) ). The decision reached by legal reasoning, after comprehensive consideration, may not be the best decision for the current case. Even if the judge disagrees with the instructions of the authorities, he is obliged to obey.
The uniqueness of legal reasoning is determined by the uniqueness of law itself. The biggest feature of law lies in its formality and generality. The formality of law means that the literal meaning of the rules themselves is very important. It is not the legal basis behind the transparent glass window, but the law itself. The generality of law shows that the goal of law is not to try to reach the best conclusion for every dispute in a completely special and situational way, but to ensure that its conclusion is correct for all or at least most situations of a given type.
The core point of this book is that even if a judge tries according to law, he will come to a wrong conclusion in a case, and the judge should respect the authority unless there are "anomalies" and "extreme mistakes".
(2) Personal opinion: This book lacks detailed argumentation.
?
1. Although rules and precedents are binding, judges have a considerable degree of initiative (that is, discretion) in judicial trials to achieve justice in his mind.
No matter China, which is considered to belong to the civil law system, or typical common law countries such as Britain and the United States, judges have their judicial initiative. A judge with a high level of interpretation and application of the law can avoid unfair cases when other judges apply the same rules.
(1) China
Judge China's initiative is mainly reflected in the choice and interpretation of the applicable law.
In the choice of legal basis, taking the Luzhou bequest case as an example, the judge can judge the conclusion according to its value, which can either apply the principle of public order and good customs of civil law to invalidate the will of the deceased Huang Yongbin who bequeathed his inheritance to the woman who lived together outside marriage, or choose to apply inheritance law to respect the expression of the deceased's will before his death.
In legal interpretation, firstly, the inherent uncertainty of language leaves room for legal interpretation, especially in the case of vague literal extension; Secondly, the expanded interpretation, analogy interpretation, historical interpretation and purpose interpretation in literal interpretation are all interpretation methods that can enrich rules and expressions. For example, before the revision of the Copyright Law, judges who thought that the types of works were illustrative rather than restrictive could either interpret the word "including" in Article 3 of the Copyright Law (version 20 10) as an incomplete list or "including". For another example, literally, there is no provision that the initial mode of transmission must be wireless; However, according to the interpretation of legislative history, considering the background of broadcasting right, broadcasting right should be understood as all ways to use works by wireless initial transmission.
(2) Foreign countries
The initiative of British and American judges is mainly reflected in the distinction and choice of precedents. First of all, the judge needs to choose the applicable precedent in a specific case (that is, to identify cases with the same dispute) and generally compare them with the facts of the case. Unfortunately, this book does not explain how to judge the "legal similarity" between precedent and this case. Secondly, judges need to distinguish between "incidental opinions" and "reasons for judgment" in cases and identify legal claims in cases. Finally, even the court that made the precedent judgment may have contradictory and changing positions on similar issues, so the judge can choose the precedent that is close to his own value judgment conclusion to apply.
2. The outcome of some cases is not the "best judgment" in the eyes of judges, but it may conform to the core values of the law (that is, "the best judgment in law").
No one can define what is true justice. The same is true of judges. Human beings are born with sensibility and are easily bound by their own likes and dislikes. What he thinks of justice is not necessarily the justice of illegal goals. Legal rules are the product of repeated discussions among different subjects, which contain human's thoughtful value choices. Judges can realize the value of law by applying rules, even if the value of law is unacceptable in some cases.
This view can be supported by the following judgments of the Supreme Court of the United States on indirectly recognizing the invalidity of flag protection laws in 48 states. In Texas v. Johnson [if! Support footnote] [1] [Endif] Johnson took part in a political demonstration against * * * and the party's election of Reagan as presidential candidate. Johnson burned the national flag in the demonstration. When the national flag was burning, Johnson led the demonstrators to shout, "America, red, white and blue, we spit on you!" " "Johnson was accused of' desecrating the national flag' by Texas criminal law, but the Supreme Court ruled by five to four that the defendant was not guilty of burning the national flag because of the First Constitutional Amendment of the United States. In the judgment written by Judge Brennan, it is pointed out that "safeguarding the national flag as a symbol of national unity cannot prohibit the defendant from expressing freely. The most basic principle of the First Amendment to the Constitution is that the government cannot prohibit the spread of an idea just because it is disgusting or unacceptable. "The judgment reaffirmed the principle of freedom and tolerance fully embodied in the American flag, and reiterated the belief that the criticism of flag burning is the symbol and source of American power: the most appropriate response to flag burning is to wave the flag in your hand; The best way to send a message to those who burn the national flag is to pay tribute to those who burn the national flag. Punishing the desecration of the national flag will not make it sacred, on the contrary, it will only weaken the freedom represented by this symbol of true love. Judge Kennedy wrote in his secondment, "The harsh fact is that sometimes the Supreme Court has to make decisions that the Supreme Court doesn't like. The Supreme Court made such rulings because they were correct in the sense of the law and the federal constitution. According to the Supreme Court, the law and the federal constitution forced the Supreme Court to make such a ruling ... Symbols often lie in people's own interpretation, but the national flag has been enduring in expressing the beliefs of the American people, such as law, peace and freedom to safeguard the human spirit. This case forced people to realize the price they paid for these beliefs. It is painful to realize that the national flag protects those who despise it, but it is of fundamental significance ... The defendant's behavior is a technical and fundamental speech from the federal constitution. Although for any country or nation, burning the national flag is tantamount to trampling on the dignity of the country and nation, and judges can't agree with this behavior emotionally, considering that freedom of speech is the most sacred basic right in the US Constitution, the Supreme Court is bound by it and has to "make a ruling that the Supreme Court doesn't like".
3. The mechanism behind the formality and generality of law-the value of the rule of law.
(1) The rule of law is a rational choice under the balance of interests.
Plato once explained which is better, the rule of man or the rule of law. At first, he thought that the rule of man was the most ideal way of governance, but because there were few kings with philosopher thinking, it was difficult to cultivate people who had been edified and trained by the system. So Plato thought that the rule of man violated the weakness of human nature and was an unattainable "ideal country", so he turned to a country ruled by law (that is, according to the system).
There is no perfect system construction. As can be seen from the comparison of the realization effects of the rule of law and the rule of man in the following table, the rule of law is a low-cost governance mode.
Relying on stable and predictable laws vs. relying on the personal ability of judges.
In most cases, justice cannot be guaranteed, and individual justice may be realized.
High efficiency, fast dispute resolution, heavy burden of argumentation and long trial period.
The harm caused by unjust, false and wrong cases is great, and the instability of VS method is great.
(2) the difference between formal justice and substantive justice
The author believes that the so-called "true fairness" is an illusory castle in the air, and the value of the rule of law is largely reflected in the "fairness of the same case and the same sentence". In other words, formal justice is easier to achieve than substantive justice and is the basic goal of the rule of law.
(3) Decentralization under the rule of law
According to Rousseau's viewpoint in The Social Contract, people express their general will and exercise their sovereignty by making laws. As the embodiment of the people's will, law is authoritative. As a process of applying law, judicature cannot make laws at will, otherwise it will violate the social contract.
4. Response to the legal realism described in this book.
The core view of legal realism is that judicial decisions are predictable, and the key to predicting legal results lies neither in seeking the help of formal legal authority, nor in the judge's own internal understanding or self-statement, but in finding out what caused the differences in case judgments through systematic experience (external research). [If! SupportFootnotes][2][endif] In this regard, the author has the following three understandings.
First, the judge draws a conclusion from experience, and then finds the legal basis to support the conclusion, which is justified. The reason is:
(1) "The life of law lies in experience", and the sense of law and intuition are the accumulation of referee experience and the call of simple and just ideas, not completely unreliable. If you are worried about the judge's intuition, you can ensure that the judge has enough experience and sense of justice through strict selection tests. For example, the selection of judges in the United States needs to examine whether judges have historical stains such as drunkenness and whether they have a considerable number of years of legal practice.
(2) If the judge can deduce the preset conclusion from the legal basis through strict logical reasoning, it shows that the conclusion conforms to the value contained in the law.
(3) Leaving aside the conclusion of the case for the time being, the whole process of the judge's judicial reasoning demonstrates the authority of the law. One of the original intentions of the parties seeking judicial relief is to express their "grievances". They will feel dignity and trust in the law in the benign interaction of fully expressing their demands and getting full attention from judges.
(4) Judges cannot deny the binding force of legal rules and the significance of the rule of law by inferring the legal basis from the conclusion, because judges still need to express their position through the legal norm system (no matter where this position comes from).
Second, of course, the judiciary can't rule out the effect of extra-legal factors on judges, because judges are not artificial intelligence, and the trial of cases inevitably has personal imprint and personal characteristics.
Third, when there are loopholes in the law itself or the original understanding of the law can't adapt to the changes in social life and needs to be changed, extra-legal factors such as policy choice, economics and sociology will guide us to analyze the trend of the law, which is a problem that the law itself can't solve. Here, we have to talk about the relationship between legal dogmatism and social science law-legal dogmatism (that is, normative analysis) plays a leading role in dealing with conventional cases and maintaining legal stability; When dealing with difficult cases and legal changes, social science law (that is, value analysis) plays a leading role and determines the direction of legal rule reform. However, the final structure of the legal system still depends on the normative language of the law, and the extra-legal value is expressed in the form of law.
Yu Huan's case and Kunshan's anti-homicide case, which have great influence on the development of justifiable defense theory of criminal law in China, are typical cases in which judges draw conclusions first and then conduct legal reasoning. At first, the judge had a simple cognition that the conviction was based on emotion and irrationality, but in legal reasoning, he found that the facts of the above cases were indeed contrary to the traditional identification of justifiable defense in criminal law, and then he reflected on the shortcomings of excessive identification of justifiable defense in traditional theory and relaxed the criteria for judging justifiable defense. This trial example reminds us that when the result of legal reasoning runs counter to legal consciousness (especially the legal consciousness of most people), we need to consider whether it stems from the deviation of legal understanding.
5. Summary: The formality and generality of law do not exclude the flexibility of justice and the variability of law.
In our country, judges can not only use legal interpretation flexibly and give new meaning to the law with the times, but also find loopholes in the rules in the process of applying them, thus promoting legislative reform. In the common law system, judges can not only have some room to choose precedents, but also change the established common law rules based on their social environment when applying "abnormal" and "extremely wrong" precedents, so that the system can be continuously revised and improved. In this way, the law has gradually developed in the contradictory struggle of stability, flexibility and adaptability.
(C) Reflections on the trial practice of intellectual property rights in China
1. Pay too much attention to the fairness of individual cases.
Judges often abuse the principle clauses in Article 2 of the Anti-Unfair Competition Law, and give relief to vague areas that cannot be given relief through the Copyright Law, but are not protected and considered unreasonable. This clause is not only an ex post facto judgment that cannot be reasonably foreseen by the parties, but also easy to give them uncertain legal protection, so the judge can't escape the criticism that justice is not justice presupposed by law.
2. The judge abused the initiative of "making law"
Although the judicial judgment of copyright is based on the rapid development of technology, the emergence of new technologies and new situations does not necessarily challenge the existing rules, and the application of the original rules does not necessarily lead to unfair cases. However, due to the lack of legal interpretation ability, some judges often mistakenly think that the original rules can not adapt to the development of technology and are eager to make laws to make up for what he thinks is "legislative defects."
In this regard, judges should deepen their understanding of the normative purpose of legal rules and apply their initiative to the interpretation and application of rules.
[If! Support list ]u? [endif] For example, judicial practice arbitrarily breaks through the closed situation of fair use.
[If! Support list ]u? [endif] Cui's criticism of the law-making by intellectual property judges.
3. The injustice caused by judging a case according to law may be due to the misunderstanding of the rules by the judges, not the problems of the rules themselves.
Example:
[If! Support list ]u? [endif] Does originality require works to reflect the author's thoughts?
[If! Support list ]u? [endif] Is the distinguishing standard between film works and video works original or is there a debate about originality?
In fact, it is a false question, and it is meaningless to discuss it. "Height" and "existence" are only differences in language expression, and the core of solving the problem lies in the understanding and judgment standard of original meaning.
(4) Other ideas
1. Special emphasis is placed on the rationality of legal person's thinking.
2. Does the legal person only consider legal reasoning?
(5) Recommended reading:
1. Su Li: thinking of legal person, in Peking University law review, vol. 14, No.2, 20 13, pp. 429-469.
2. Xiao Xia: "Dualism of Legal Person's Thinking: A Discussion", in Chinese and Foreign Law, Volume 25, Series 6, 20 13, p.105-1kloc-0/36.
[If! Support footnote ][ 1][endif] Texas v Johnson, 49 1 U.S supreme court, vol. 397 (1989).
[If! Support footnotes][2][endif][ America] Friedrich Shore: "Thinking like a legal person-a new theory of legal reasoning", China Legal Publishing House, 20 16, p.147.