-The dilemma and outlet of China law in my eyes.

"Irreconcilable reconciliation, combination of contradictions and synthesis of opposites-these are all legal issues."

-Cardoso

"The life of law lies not in logic, but in experience."

Sherlock Holmes

Starting from the current dilemma of jurisprudence in China-the involvement of non-legal factors leads to the uncertainty of legal results, so that people generally lose faith or even confidence in the law-this paper emphasizes the value of legal reasoning (mainly practical reasoning) in the application of law, in order to make the law more clear, restore the confidence of the general public in the law, and finally achieve the goal of pursuing substantive justice. As for how to make the law clearer and more predictable, the way I choose is to follow the precedent principle based on analogical reasoning.

Keywords: legal dilemma? Legal reasoning deductive reasoning? Practical rationality? Analogical reasoning? Follow precedent? Case law system?

1. What do I call the current predicament of China law?

In my opinion, the biggest dilemma of China's jurisprudence is that its authority is far from reaching its due height. This performance is multifaceted. "The law must be believed, otherwise it will exist in name only" [1], "Only those who respect the law can become protectors", but the current legal person in China obviously does not respect the law enough [2]. Some scholars have pointed out that the key to China's legal dilemma lies in the lack of subjectivity of China's identity. China's legal person lost himself and became a phonograph or microphone, seemingly thinking about everything, but just "thinking about the basis of thought itself, which does not exist or is material", so that "we have no future of China, only the past and today of the West" [3]. This, in my opinion, is also a sign of its lack of confidence in China's own laws. The legal person is still like this, let alone the general public.

China people are not used to legal thinking, while China people are the most pragmatic. China people are used to believing in authority [4], so "it is difficult to seek politics" has been the continuous way of thinking of China people for thousands of years, and it is also the expectation that most China people expect Master Qingtian to come out and make decisions for themselves. This traditional rural area of China [5] has left a deep imprint, which has become a part of our national character, and it is hard to be easy. The so-called rule of law, first of all, must live in the hearts of the general public and become the normal state of their lives before it can be realized [6]. This paradox causes the embarrassment of law in reality [7].

And what is the main reason for this situation? I think it is the unpredictability of the law. As we all know, law is not the final way for us to solve problems, or even the main way (let alone the only way). "The major case stresses politics, the middle case stresses influence, and the minor case stresses law" is almost a well-known hidden rule, which is deeply hidden in the mind of every legal person (at least judicial personnel). No matter what happens, this principle always acts as a filter. Therefore, it is no exaggeration to say that the law is only the third option at most. This is the sorrow of all legal persons.

Therefore, when the law (especially in the judicial and law enforcement) is too mixed with ideology, politics, people's will, morality and other factors, the law can not give people confidence. It is this uncertainty that leads the general public and even legal persons to distrust the law. And China's legal person obviously didn't tell, it seems that he is not qualified (even against his will) to tell ordinary people that "the law is certain" [8]. Of course, even if there is, it is not difficult to imagine how many people are willing to believe naively.

Two. Legal reasoning

The laws in China are not pure laws, and the legal problems in China are not pure legal problems. "Justice, national law and human feelings", the national law is sandwiched between the two, and it can't go up, down and move [9]. Even in the limited use of law to solve practical problems, the professionalism embodied by legal persons is still hard to compliment [10].

Friedman analyzed the general process of legal system from the viewpoint of information theory, and divided this process into stages of raw material input, processing, judgment output and information feedback [1 1]. What I am focusing on here is the second stage, that is, the process of ascertaining facts and applying laws, that is, the processing and thinking of legal information. The most important thing is legal analysis.

According to Posner, legal analysis is a discussion of the relationship between legal concepts. Bodenheimer simply thinks that legal analysis is analytical reasoning, that is, legal reasoning. Both of these statements are inevitably too abstract. So what is legal reasoning? Dworkin said: "Legal reasoning is the application of constructive interpretation. Our law exists in the best display of our entire legal practice and in the best description of these legal practices. " [ 12]

Therefore, legal reasoning is an extremely huge and complex concept, which can even include legal interpretation. It is the application of logical thinking method in the legal field, that is, the general logical deduction of legal propositions [13]. It can be said that it runs through the application of the law from beginning to end, and even has always been the key.

According to the different logical forms and rules of legal reasoning in different difficult situations, legal reasoning can be divided into formal reasoning and substantive reasoning [14].

3. Is there a correct answer to the legal question?

But before legal reasoning (analytical reasoning), the premise we should first consider is: Is there a correct answer to a legal question? Because this question is actually the legal basis for whether legal reasoning is necessary and effective.

Dworkin believes that there must be only one correct answer to legal questions objectively. "For many years, I have been refuting the positivist's statement that there can be no correct answer to controversial legal issues, but only different answers; I have always insisted that in most cases, the correct answer can be obtained through reasoning and imagination. " [15] But obviously Posner can't fully agree with this view. He called Dworkin a "moral realist" and advocated that there is only one reasonable standard to measure the correctness of legal reasoning conclusions. Objectivity means "I think other people with conventional intelligence and conscience may reasonably regard it as the right thing" [16]. Some critics think that he "opposes right and truth, and falls into a kind of truth mysticism" [17], which will lead to the ambiguity of the law and thus become unpredictable [18]. This is incredible. I don't think legal problems can ever exhaust all possibilities with formulas like mathematics or physical logic, and finally get the truth. Due to the participation of human beings, legal issues will inevitably be unconsciously mixed with the value judgments of many individuals and groups, which makes it difficult to say that legal issues can have an objective answer [19]. Only through a variety of comprehensive practical rational methods can we find the most reasonable answer that most people in our time agree with.

But this does not mean that the law is unpredictable. As I will discuss later, establishing a reasonable precedent system is a very effective solution.

Four. Functions and defects of logical reasoning (judicial syllogism)

I believe that for most people, legal reasoning is judicial syllogism. Especially in the view of analytical jurists, "the so-called rule of law means that the conclusion must be the inevitable result of the logic of major premise and minor premise", but this simple thinking of using the law as a vending machine [20] is a retrogression even in the sense of Aristotle's inevitable reasoning and dialectical reasoning [2 1]. However, in a simple case, in fact, a simple inference of deductive logic is enough.

The essence/key of deductive reasoning is whether a case is an example of a rule. Or take this perhaps the most famous syllogism as an example: "all people will die;" Socrates is a person; So Socrates will die. "The validity of the argument is only here: Socrates' conclusion of death is contained in the first premise-the definition of" man ". In fact, the premise is that there is a box marked "people", and there are some things in the box, everything is "dying". The minor premise tells us that everything in the box is famous brand, and one of the famous brands says "Socrates". When we took Socrates out of the box, we knew he would die, because everything in the box would die. Posner pointed out that this syllogism has convincing validity because it uses a metaphor and a box metaphor [22].

Deductive reasoning has two premises [23]: 1, axiomatization of legal system: exhaustion of reason and self-sufficient system. First, the legal system is complete; B, the system is harmonious, and it is not allowed to affirm and deny a proposition at the same time; C, eliminate the ambiguity of all symbol expression rules and their applicable fields. 2. Formalization of legal proposition.

Deductive reasoning (judicial syllogism, or as Posner said, it also includes the so-called default syllogism) still plays a vital role in maintaining legal certainty and the principle of rule of law. Just once you encounter a difficult case or a case involving ethics (that is, if you can't clearly know what a "box" is and what it contains), you can't do it by deductive reasoning alone. In addition, deductive reasoning itself has a fatal flaw [24]: the legitimacy of syllogism is not necessarily consistent with its true reliability. Its authenticity depends not only on whether the specific syllogism is legal, but also on whether the premise is true. That is, when the size premise is false, whether the conclusion is correct is probable and uncertain. Then use another appropriate and famous example about Socrates to illustrate: "all Spartans are very clever;" Socrates was a Spartan; Therefore, Socrates is very clever. "Here, although the conclusion is correct, it is true but illegal, because the premise of size is wrong. This will inevitably bring indescribable trouble to people in judicial practice.

Verb (abbreviation of verb) practical reason BLACKPINK debuted.

So, how to overcome the inability of deductive reasoning to difficult cases? Posner's method is to advocate the use of "practical rationality" reasoning method to supplement logical reasoning [25]. Practical reason "this term lacks a standard meaning", and there are at least three different usages [26]. But "generally speaking, the practical rational method is an action-oriented method corresponding to the pure rational method of logical reasoning." Practical reason is the method people use to make practical or moral choices. It includes the justification of a certain behavior and the determination of the best means relative to a certain purpose, in which the decisive factor is empirical wisdom. The so-called practical rationality is the experience and wisdom accumulated by judges and lawyers in the court trial practice of specific cases and in the hasty court debate. " [27]

Practical reasoning should include several practical rational methods, among which common sense reasoning, intuitive reasoning, analogy reasoning and explanatory reasoning are typical. In fact, China does not lack the tradition of analogical reasoning. The so-called "spring and autumn judgment question", in a sense, is the simplest and simplest method of analogical reasoning [28]. Only with the development of civil law system in modern China did analogical reasoning decline.

And "in the eyes of most modern lawyers, the center of legal reasoning is analogical reasoning" [29].

6. "Good Push"-What is analogical reasoning?

"Inference by analogy means that a legal rule extends to a factual situation, which is not covered by the text of the rule, but is considered to be within the scope of the policy principles that form the basis of the rule." [30] Therefore, analogical reasoning is actually a form of reasoning based on the similarity of two objects in some attributes to infer that two objects may be similar in other attributes. Its basic logical form is:

A things are a, b, c, d,? B things have attributes a, b, c; Therefore, thing b has the attribute d[3 1].

As far as the application of law is concerned, "the formula of analogical reasoning in the application of law is generally: Rule A is applicable to case B, and case C is similar to case B in essence, so Rule A can also be applied to case C" [32] So analogy is actually "to judge the latter case in the same way as the previous case." [33]

This is actually the basic principle of precedent system that follows precedent.

Seven. Follow the precedent principle

Nowadays, the mainstream view in the Anglo-American legal system holds that court decisions, especially those of the Court of Final Appeal, which explicitly or implicitly put forward certain legal claims, constitute the general and formal sources of law. However, "the dominant theory of Roman law countries holds that judicial precedent should not be regarded as the formal source of law." However, I believe that with the continuous exchange and integration of the two legal systems, civil law countries can not be biased against the precedent system just because Justinian's order that "cases should be judged according to law rather than precedent" [34]. And civil law countries have obviously noticed this problem, and things are changing [35]. In civil law countries, "a series of cases with the same expression of legal claims have almost the same authority as the precedents of British and American courts or a series of British and American court precedents." It is worth noting that the case compilation. For example, the German Supreme Court held that if a lawyer ignores a case published by the court in its official case compilation, he should be responsible for the consequences. "In China, since 1992, the Supreme People's Court has also entrusted China Institute of Applied Law to edit Selected Cases of People's Courts every year, and some scholars have publicly called for the establishment of China's own precedent system as soon as possible.

I take the principle of good faith as an example to study the practical significance of following the principle of precedent. In our country, Article 4 of the General Principles of Civil Law only mentions this name, and the relevant law textbooks are also vague about it [36]. I think this is the hidden worry caused by the lack of precedent system, because this moral clause is difficult to express clearly in words. In common law countries, the principle of good faith is based on specific cases. Later judges or lawyers used Aristotle's so-called reasoning from one part to another, and it was easy to draw the conclusion whether there was a violation of the principle of good faith in the cases he handled-although this did not mean that they could expect precedents to be set on new cases as easily as gloves.

Eight. Establish and improve China's own precedent system.

Therefore, it is imperative to establish a precedent system in China. The relatively backward statute law and some abstract principles are difficult to explain, which makes it urgent to establish a precedent system that can effectively make up for these defects. As mentioned earlier, the judicial tradition in China does not exclude the precedent system [37], which makes it possible to establish the precedent system in China [38]. Some scholars even pointed out that the selected cases published by the Supreme People's Court in China have the name of precedent, but not the reality of precedent, and the clues of precedent system have already appeared in China. This may be reasonable, but it should be noted that there are still qualitative differences between cases and precedents.

At present, the establishment of precedent system has at least the following clear benefits: 1. Supplementing the loopholes and shortcomings of statute law; 2. Make up for the abstractness and deficiency of legal interpretation; 3. Accumulate experience and promote legislation; 4. Conducive to the judicial decision of the court.

So, how should we establish a precedent system? This is beyond my scope. But "boy, cut the crap" is nothing more than a question of who will/how to choose, how to compile, how to publish, and how to change the precedent, all of which require the determination and guarantee of the system and even legislation.

Once an effective precedent system is established, in my opinion, judges' judicial decisions can be regulated and restrained to the maximum extent and their arbitrariness can be reduced. It can also improve the professional quality of lawyers to a greater extent, and ultimately promote the healthy development of the whole legal person profession. This is undoubtedly a key step to restore people's trust in the law. This step will come out sooner or later. If we don't go, who will If we don't go now, when will we? [39]

Conclusion: Dare to ask where the road is? The road is at your feet!

Dialectical materialism holds that "in the long river of absolute truth, people's understanding of the specific process of each development stage is only relative truth". [40] If we must find the truth and find a perfect way of action, we are undoubtedly just waiting for death.

I would like to be a chimney sweeper written by Blake, and I would like to be an epitaph chosen by Ye Zhi for myself:

"For life and death,

A cold glance,

Ma Xiangqian! "

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Floating in the air 2010-12-12

I. Definition of traditional legal resources [1]

(A) on "tradition"

What is tradition? Tradition is formed in the rolling waves of the long history. The historical tradition of an ancient nation always gives people a distant impression, which is extremely rich and elusive. According to Mr. Xu's textual research, the word "tradition" first appeared in China's classic The Book of the Later Han Dynasty. [2] But it only refers to the inheritance of rulers, which is far from what is called "tradition" today. China used to have the word "orthodoxy", but it didn't mean tradition. The word tradition is translated from English "tradition" and comes from Latin "tradition". Secondly, the root word "tradition" means "extradition", which means that something is passed from one person to another. E. Hills thinks that tradition means many things. In its most obvious and basic sense, it means something handed down from generation to generation, that is, anything handed down from the past to the present. [3] There are many views on what tradition is, and I won't list them here. This paper agrees with the traditional special definition, that is, "the sum of social and cultural achievements in the pre-modern period has the systematic characteristics of relative stability and internal harmony." [4]

(B) on the legal tradition

The law and legal tradition mentioned in this paper are understood from a broad perspective. In a narrow sense, laws are only legal provisions and codes; Broadly speaking, law and legal tradition include those legal traditions, such as positive law, legal procedures, legal concepts, thinking standards and value judgments. Legal tradition can be understood as a legal cultural tradition that is still playing a role in modern society and has vitality in the ancient legal system. It should be a diachronic concept, which exists not only in ancient society, but also in existing society. It is an uninterrupted and constantly extending legal culture and spirit, which evolved from traditional laws and still has a role and influence on the real society. Traditional law is a historical concept, which mainly refers to pre-modernity in time. Traditional legal resources are the general name of all pre-modern legal achievements and the foundation of a country's legal development. Under certain conditions, traditional law can be transformed into legal tradition.

Second, about the modernization of law.

(A) the measure of modernization

Different scholars have defined the concept of modernization from different angles.

1.c e Blake tries to understand modernization in the sense of historical genesis, and thinks that the word modernization refers to the dynamic form of the long-term reform process caused by the explosive growth of knowledge in recent centuries. The special significance of modernization lies in its dynamic characteristics and universality of its influence on human affairs. It originated from the fact that society can and should change, changing the beliefs and mentality that are in line with people's hearts. If it must be defined,' modernization' can be defined as: reflecting the unprecedented growth of human control environment and knowledge, and with the occurrence of scientific revolution, various systems developed from history adapt to rapid changes. " [5]

2. rozman, who is famous for his research on China's modernization, inherited Blake's methodological principles and emphasized that modernization should be regarded as a process in which society has changed or is changing under the influence of scientific and technological revolution, which is a dramatic, far-reaching and inevitable example of social change in human history. [6]

3. M.J. Levi regards modernization as the universal development path of the whole human society from the standpoint of social structural functionalism, and points out that "modernization is, after all, a star of hope in social reality and an unprecedented leap in lifestyle. Modernization is the only universal way out for society. " [7]

All the above viewpoints on modernization, "although the emphasis is different, obviously contain such a judgment: the so-called worldwide historical process of modernization is a transformation and leap from traditional society to modern society, and it is a profound transformation process in the main fields of social life experienced by human society since the industrial revolution." [8] "Modernization is first of all a changing concept, and it is a historic replacement of traditional lifestyle and its system for modern lifestyle and its system"; [9] "Secondly, modernization is a continuous concept. It is a long historical development and change process. " [ 10]

In my opinion, modernity and tradition are not extreme states of mutual opposition and mutual exclusion, and there is no pure modernity and pure tradition in any society. On the contrary, the modernization process is a process of weakening tradition and strengthening modernity. The tradition of every society has the possibility of developing modernity. Therefore, modernization is an interactive process in which traditional systems and values constantly adapt to the requirements of modernity, that is, industrialization in the economic field, democratization in the political field, urbanization in the social field and rationalization in the value field.

(B) the meaning of legal modernization

The modernization of legal system refers to the process of a country's traditional legal system changing to modern legal system. In the static aspect, the modernization of law means that the published law is a "good law" with complete system, clear hierarchy, balanced structure, standardized coordination and unified style, which embodies the people's will, adapts to social development and represents the trend of human progress; In terms of dynamics, it means that the law is "respected in any way and maintains the highest authority". In short, the goal of legal modernization is to realize the rule of law.

Third, the position and role of legal tradition in the process of legal modernization.

The first country to act

Among many legal traditions in the modern world, civil law system and common law system have the most extensive influence, and both of them meet with Roman law [1 1] on the road of evolution. The difference is that the representative countries of the two legal systems have taken completely different attitudes towards Roman law: Britain, as the birthplace of the Anglo-American legal system, largely rejected the influence of Roman law and embarked on a relatively independent legal development path, forming a legal tradition with the common law as the core; The continental European countries, represented by Germany and France, adopted the method of absorbing Roman law to modernize their laws, and formed a continental legal system based on Roman law. Britain and Germany are essentially the result of absorbing many previous legal achievements, including Roman law and Germanic customary law. Britain absorbed many advanced elements of Roman law [12], and Germany also retained many reasonable cores of Germanic customary law.

1. Anglo-American legal system-Take Britain as an example: Hawkes House, a British legal historian, believes that the basic part of the legal system in western European countries is the remnants of Roman law, mainly the barbarian habits reconciled by Christian theologians and the political and legal thoughts of Roman jurists preserved by the church. From the source, the legal tradition in Britain combines Germanic factors, Roman factors and Christian factors. [13] Professor Liang Zhiping once pointed out in his master's thesis "Roman law factors in English law" (5) that the difference in the absorption of Roman law between Britain and mainland countries may also be a reason why English law is independent of Roman law tradition. At the beginning of the establishment of the common law, judges were proficient in Roman law, Blackton was an example, and it was inevitable to be influenced by Roman law when issuing writs. But the crux of the problem lies in the development of writ and precedent, a common law. The common law is based on writs and takes precedent as its form of expression, which makes Roman law, which is more abstract and separates legal rules from rules, can only be dissolved in the common law, but can not be expressed in the form of traditional legal norms; In addition, due to the thinking mode of common law, even experts can hardly find the influence of Roman law. Moreover, the most intuitive difference between legal systems lies in the form of expression and mode of thinking rather than the legal content, which strengthens the independent position of English law and forms a legal tradition independent of Roman law.

(1) Central Court System and Circuit Trial. 1 1- 12 century, in the process of strengthening the kingship of the central government, judicial power was also concentrated in the central government. At first, the king and his government adopted circuit trial, but with the increase of cases, in order to eliminate the disadvantages of irregular circuit trial, three royal courts fixed in Westminster Hall were gradually formed, and circuit trial was further institutionalized during Henry II. Their role is to unify local customs and form a "unified custom of the kingdom", which is beyond the reach of any local lords court. Moreover, Mearson believed that the courts applying these customs changed from local courts to royal courts, which changed the nature of customs. "The Royal Court ... thinks that these customs are just some rules and abstract rights," and customs become laws. This unwritten custom was transformed into law and fixed in the form of judgment, thus forming Britain's own legal tradition.

(2) Writ system. Writ is the basis of the jurisdiction of the royal court, that is, if you want to get relief from the royal court (later common law), you must get a writ. And each writ is a solution to a dispute, including the corresponding procedures.

(3) the jury system. The former jury was a witness to prove the law and facts. They provided local customs for the circuit trial at that time and laid the foundation for the later unification of national customs. Here refers to the small jury, which is a rational trial method to replace the backward trial methods such as trial by god and duel. Its application makes the royal court attract more parties and promotes the continuous expansion of the jurisdiction of the royal court, which is its first contribution to the development of common law. Another contribution is that because the jury is not God, it is composed of ordinary people who make mistakes, and the summarized evidence will induce them to make mistakes, forcing the court to change the previously summarized statement and defense mode and let the jury make a judgment "after considering the details of the facts". This led to the emergence of substantive law.

(4) Defender. The defender was fixed in the royal court and appeared after the small jury was produced. When the fixed royal court was established, the affidavit of neighbors could not be maintained, and it was not economical to bring a group of neighbors to London for litigation, so a group of professional lawyers appeared in London. As they are not neighbors, their role cannot be affidavit. Coupled with the secular nature of the jury (as mentioned above), their role is to describe the facts in detail rather than in general for the plaintiff, and to defend the defendant's narrative sentence by sentence. And every defense is based on the recognition of a rule, and future generations are looking for legal rules from the defense of these defenders. [14] The complexity of the writ system and the consequences of choosing the wrong writ led to the increase and specialization of defenders, and finally formed a closed group of guild lawyers.

(5) legal documents. Legal documents are descriptions of the legal process, which later became the basis of legal education and the source of legal sources. The first is the collection of writs, because the lawsuit must start with the correct writs, and the knowledge of writs is also needed to understand the common law of the royal family. The existence of a large number of such books laid the foundation for the immobilization of the writs system. The second category is the works of justices, among which glanville and Blackton are the most famous. The basic content of this book is about the use of writs and precedents. The third is the Yearbook of Law, which describes the whole process from the beginning of litigation with writ to the end of judgment, especially about statements and defenses. It records the statements and defenses of the declarant, that is, the substantive law applicable to the case. Like Roman jurists, except for questionable works, no one wrote legal reviews and systematic teaching books, and no one simplified the facts into one or two comments, only procedural writs and specific lengthy defense statements. These legal documents provided legal education with practical legal knowledge for the court at that time; The contents of these legal documents are mainly comments on writs and precedents, which promote the formation of British legal education and the unique tradition of British law.

(6) legal profession and legal education. At the beginning, there were judges who were not specialized in law. At that time, judges were held by church people, who were managers in a greater sense. Lawyers didn't exist, but later they changed. As mentioned above, due to the complexity and importance of defense and writ of choice, the narrator appeared. By the end of the 13th century, he had become a closed profession in the High Court, that is, a lawyer. At the same time, there is a tendency to select judges of the royal court from these lawyers, which has become an established habit since the fourteenth century. A unified British legal profession has been formed.

(7) Case law. Black said: "However, if the same case happens, it should be judged in the same way: it is easier to deal with it case by case." The role of this factor is to take the customary law embodied in the litigation with a fixed written form as the legal basis for future trials, that is, even if there were not many written laws at that time, judges could find the legal basis from previous judgments without considering whether to make judgments based on the concept of justice or absorb foreign laws.