Philosophy of law is a branch of applied philosophy and theoretical law, the most common and basic legal theory formed by abstracting legal phenomena with philosophical thinking, and the world outlook and methodology of law. The following is the relevant information I have carefully sorted out, hoping to help you!

A Review of the Frontier of Western Philosophy of Law

Philosophy of law is a branch of applied philosophy and theoretical law, the most common and basic legal theory formed by abstracting legal phenomena with philosophical thinking, and the world outlook and methodology of law. Philosophy of law is at the highest level in the legal knowledge system, which provides theoretical basis and ideological support for all legal departments. The topic of philosophy of law covers a wide range, involving the most basic and fundamental issues in law, such as the essence, origin and value of law. Western philosophy of law has a long history, many schools and different viewpoints, which provides ideological resources and theoretical guidance for the construction and practice of western rule of law. Contemporary western philosophy of law has absorbed and applied the world outlook and methodology of contemporary western philosophy, further expanded the scope and research depth, and achieved many new achievements, which can provide enlightenment and reference for the study of philosophy of law and the practice of rule of law in China.

"Linguistic Turn"

After the turn of ontology and epistemology, the research focus of modern and contemporary western philosophy turned to language. Influenced by it, contemporary western legal philosophy has also undergone a "linguistic turn", and schools such as semantic analysis law, new rhetoric and symbolic law have emerged. Although the methods and contents of these schools are different, the core issues they discuss are all related to language. Among them, the semantic analysis law represented by British legal philosopher Hart and the new rhetoric represented by Belgian legal philosopher perelman are considered to be the best in the "linguistic turn" of contemporary western legal philosophy.

There is a close relationship between law and language: law must be expressed by language, and language gives law concrete connotation. The "linguistic turn" of contemporary western legal philosophy has changed people's understanding of law and raised the research of legal language from instrumental status to ontological status. From this perspective, law can be summarized as legal linguistics: when we think about law, we are essentially thinking about legal language. As Hart said, when we think about the nature of law, we are actually thinking about the word law itself; The way to understand the concept of law is to constantly explore the meaning of the word law, and analyze and explain related concepts such as power, rights and obligations from the perspectives of semantic analysis, rhetoric and semiotics.

Due to the fuzziness, polysemy and ambiguity of daily legal language, the objectivity, accuracy and uniqueness of legal meaning recognized by western traditional legal philosophy are challenged by contemporary western legal philosophy such as semantic analysis law and new rhetoric law. In the latter, law is no longer regarded as a set of irrefutable and unchangeable principles and rules, but as a means of human language communication and judicial interpretation, which depends on different contexts and is open, argumentative and creative; At the same time, legal principles and rules are not lost, but can be achieved through the judicial interpretation of judges and the debate between judges and audiences. Contemporary western schools of legal philosophy, such as semantic analysis law, new rhetoric, symbolic law, etc., use interdisciplinary and multidimensional research paradigms to criticize and dispel the * * * and skepticism in traditional legal philosophy, which has brought revolutionary changes to contemporary western legal philosophy and inspired people to rethink the universality, operability and specific application of legal principles and rules.

Legal hermeneutics

Legal hermeneutics is also influenced by contemporary western philosophy, especially contemporary European philosophy, and its philosophical root and theoretical basis are philosophical hermeneutics. Under the influence of philosophical hermeneutics founded and developed by German philosophers such as schleiermacher, Heidegger and Gadamer, legal hermeneutics has flourished and become an important method to interpret law. Kaufman, Hassmer, Lorenz and other German legal philosophers consciously or unconsciously used philosophical hermeneutics to prove their theories.

Inspired by philosophical hermeneutics, legal hermeneutics regards law as discourse, legislators as authors and law enforcers as readers, thus forming an explanatory relationship among discourse, authors and readers. Legal hermeneutics holds that to understand the meaning of law, it must be explained by words and readers, and the words faced by biased readers are historical and the authors are historical. Therefore, readers' interpretation of words mainly lies in overcoming the "time gap", striving to promote the communication between reality and history, and realizing the "horizon fusion" between readers and words, readers and authors.

Based on philosophical hermeneutics, legal hermeneutics regards law as the product of interpretation, or the law itself is an interpretation of the world, which makes the focus of legal philosophy research shift from the legislative field to the judicial field, from the simple annotation of legal words to the study of the interactive relationship between legal words and legal facts, thus dispelling the opposition between abstract law and concrete facts, subjective and objective. It tries to obtain the "truth" of law through explanation, which provides a new vision for the study of contemporary western legal philosophy and a new method for legal argumentation and legal reasoning. However, his hermeneutic stance on legal accuracy and scientificity has been questioned and criticized by some scholars.

Postmodern legal philosophy

Postmodern philosophy of law originated in the second half of the 20th century and is a "new theory" formed in the field of philosophy of law under the influence of western postmodern philosophy and culture. Postmodern philosophy of law takes postmodernism as an ideological weapon and criticizes western traditional philosophy of law in all directions.

The viewpoints of postmodern philosophy of law are mainly embodied in the following two aspects: First, denying the existence of the subject of rational rights. Postmodern philosophy of law denies the basic assumption of human beings in western traditional philosophy of law, and holds that in modern western society, human beings are only appendages of social structure, and there is no "real person". Therefore, the subject of rights is just a myth fabricated by jurists, and the concept of rights is a trap set by modern people. The second is to deny the unity, certainty, universality, objectivity, self-consistency and historical progress of law. Postmodern philosophy of law holds that the essence of law does not exist at all, and the essence of law is just a fictional myth. The ideas, principles and rules of law are just an epistemological construction of people in a specific era, which is in the process of constant change and development. Law has never been a fixed rule, nor is it an objective necessity of a certain society. In western society, law is only a tool for officials to publicize political ideas, which is reflected in the judge's behavior in the trial itself.

The supremacy, self-consistency and consistency of law rooted in western traditional legal philosophy began to shake after being severely attacked by post-modern legal philosophy, and the focus of the legal system also shifted. Laws originally recognized as belonging to the field of private law, such as property law and contract law, began to turn to the field of public law; With the expansion of western countries' functions, the ideas and systems of liberalism and individual supremacy under the rule of law are gradually eroded. The post-modern philosophy of law is undoubtedly trendy, and its criticism of western traditional philosophy of law and the practice of rule of law is profound and enlightening. However, due to the fact that postmodern philosophy of law has not established its own system, some of its thoughts and viewpoints eventually move towards legal nihilism.

With the increasing trend of separation and intersection of disciplines, new schools of contemporary western legal philosophy emerge one after another. In addition to the above schools and ideas, normative legal philosophy represented by American scholars Rawls and Dworkin and legal economic analysis represented by American legal economist Posner are all newly developed schools of western legal philosophy. In a word, the diversity of problems, disciplines and methods constitutes the overall characteristics of contemporary western legal philosophy research.

While the process of rule of law in China is accelerating, the study of philosophy of law has become a hot spot day by day, and gratifying results have been achieved. However, at present, there are still some problems in the study of legal philosophy in China, such as weak problem consciousness, weak theoretical basis and shallow research level. How to absorb the beneficial results of contemporary western legal philosophy research, study and solve the major theoretical and practical problems in China's legal research and rule of law construction, and build a legal philosophy system with China characteristics is an important topic for China's legal philosophy researchers.

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