Legal thinking; dualism; dogmatics of law beyond the legal consequences; consideration

   The law of self maintenance, it has been necessary to repeatedly.


   Carle Engisch {1}


     Justice suitable for super positive, progressive attitudes to put forward according to law, and the stability of the method is suitable to the positivism, conservative attitude for legal reasons.


        Ladd Bruch {2}


        We will never be able to prove that we are awake, that we are awake.


        Wu Jingxiong {3}


        Professor Zhu Suli in the "Harvard Law Review" fourteenth volumes of second series (2013) issued the "legal thinking? "(hereinafter referred to as" Zhu "), delicate and vivid, copious and fluent, the deconstruction of the academic features and profound writing Kung Fu stand vividly revealed on the paper, prompting us to reflect on" legal thinking "topic at the same time, also can cause the occupation law and many law students on already established that suspicion.


        The core viewpoint of Zhu Wen is to emphasize the idea of legal realism and handling method under the guidance of the America type (if not "thinking" words) superiority, thought to be "above the law" and "consider the consequences of" judge is legal person is the most ideal. This is an instructive idea, let us to reflect on the limitations of dogmatics of law, rules of the helpless reflection. As Su Li said, with the new changes in the legal development, legal person to new challenges and new problems that parts of the law of attention in the field of social economy as a result of the development of the science and technology, traditional legal doctrine does have its limitations. Therefore, I very much agree with Su Li in the article are as follows: the legal person position can not be limited to legal rules and concepts, face rigid laws and living, not rigid no consequentialist considerations. In this sense, scholars prefer in the academic point of view the realism of the concept of justice, emphasizes the transcendence of legal methodology, is no ground for blame, but also has great academic value.


        The difference between the Zhu Wen touch legal doctrine and legal realism, but the difference is in fact Donald Black called "Jurisprudential model" and "Sociological model" (i.e., Luhmann called Binary code["two yuan"] thinking mode) and the difference between the opposites, {4} problems whose essence lies in how people in the face of the rule of law and social the fact (economic, political, social, cultural, moral factors) and asymmetry between tension. In the author's opinion, when emphasizing the social consequences, may not exaggerate "function and meaning beyond the law", but can not deny specific thinking in legal rules of dogmatics of law method. They should not have been taking a simple relationship between a shed, and should be combined and coordinated. In fact, coordination can both can be combined, and the. In the last part of this paper will elaborate this problem.


        However, Su Li in order to transcend that of legal realism "law" and "consequences" meaning, and not directly to prove this point of view, but through the following path and perspective to find arguments: one is hard to originate in the China contemporary legal occupation movement "legal thinking" and " Thinking Like America A Lawyer" pulled together, as some do not understand the law practice of scholars "copycat" America version or for small has interests and fictional topics; the two is the question "legal thinking" exists, does not think that there is a legal person unique thinking, to "unique legal has legal thinking" to deny the legal person's thinking; the three is that of dogmatics of law focus only on the concept, regardless of the consequences, do not know "above the law", seems to be the only America legal people know "above the law", understand the consequences consideration etc.. Zhu Wen used a misunderstanding, exaggerated, extreme views as argument, so that a meaningful academic point of view not only not be supported, but breed some appear wrong problem. Before the discussion of the related problems, or from the relationship between the legal thinking and legal methods on hand, from the legal method and the legal thinking of common sense and general point of view, to clarify some problems of Su Li article confused.


        A legal person, the thinking is always legal occupation and the method based on the existing


        "The law of human thinking" in the rise of the contemporary Chinese, originated in the early 90's of the last century began legal occupation movement, has its unique Chinese background and conditions, namely China from on century 50's to 90's has no legal person's occupation, which seriously hindered the development of the judicial system and the rule of law the. Emphasize legal occupation, occupation thinking will concern the legal person. It is not Su Li said "Thinking Like A Lawyer" from the American copycat version. "And the necessity of legal thinking" the needs and Chinese judicial reform and the background is closely related to occupation. Therefore, it is closely related to formal, procedural justice, legal occupation, occupation of theories and ideas of it and the law, has the connotation Chinese itself, and becomes the mainstream consciousness of law era.


        From the works of Su Li, his occupation of the legal person have a certain skepticism, {5} it will also have his opposition to legal thought today's point of view. I don't want to go into the legal person and the legal occupation occupation theory, only from the analysis of some basic concepts related to clarify the significance of legal occupation. Su Li's first relates to necessity should we admit that "Legal Profession" and "Professionalization". The so-called "business daily" (Occupation) is usually divided into two categories, one is "called Trades, it does not need much training, such as craftsmen and the like; as for healers, teachers, or Profession, cultivation to volume, and its efforts to the object, not for the interests of small has, for the happiness......" {6} only a small amount of industry development becomes the occupation, it has a professional, independent (independent), the public, {7} and has unique skills and ethics, people in front of the "threshold" requirements. {8} legal person needs "much accomplishment" occupation ability, including legal person, need long-term training. It is a special legal thinking and legal methods based on the legal workers, the professional division of labor on the significance of Legal Profession (legal occupation), rather than the public sense of the Trade (industry). Occupation "is a fiduciary (fiduciary), not just a business" -- this is the occupation from American lawyers. {9} if we admit the legal occupation professional, independent, public and unity, also cannot deny the existence of different from the popular thinking "the law of human thinking". China judicial circles before the 90's of last century, there is a pair of basic contradiction: a severe shortage of society on the judicial occupation requirements and occupation of the legal person. Chinese legal profession and the legal profession is the shortage occupation at the time of the legal person of this problem, began to emphasize the importance of "legal thinking" in the 90's of the last century. Chinese without legal activity specialization and occupation of the time, and there was no legal occupation (legal person) and legal means, and therefore there was no legal person's thinking. And this is our country the legal circle and law circle the most anxiety. If you recognize the importance of the rule of law occupation Chinese, you should admit the legal occupation and occupation thinking, especially thinking method as the occupation the legal basic of dogmatics of law. Conversely, if the law does not recognize the importance of China occupation of the rule of law, there is no need to admit the legal occupation and occupation thinking.


        The legal method is a core element of legal thinking, legal thinking is the result of long-term effects of legal method. The subject of legal thinking in the legal person, the object of thinking is the rule of law and the facts of the case, ways of thinking are the third elements of legal thinking. The main part of the legal thinking method is the method of law. It is method of thinking, decided that the thinking subject have special thinking. As the name suggests, the legal method is forming method of legal judgment, it is the main method of legal thinking and legal application. In other words, the legal method is a set of occupation, is one's special skill. Legal person whether have a unique way of thinking, depending on whether the unique legal method. If the law is all people have, so the legal thinking has no independent status, like the popular thinking. Conversely, if the law is unique, so the legal thinking is unique. The legal person and the public may be consistent in the thinking object, such as all the law and the facts of the case, and method of factor is a core element of difference between professional thinking and general thinking.


        The training of thinking usually appears in the professional education or occupation training, or that appear in the teaching process and the teacher's mouth. The legal profession (occupation) thinking training is not exceptional also, more often appeared in the course of law education, law teachers in the mouth. Why do we hear the less occupation of lawyers and judges the legal thinking about? Because they have been training well, legal thinking has already be accustomed to for them. As adults with growth, accustomed to wash, to walk, to write such action, also won't like children do pay attention to their face, to walk, to write correctly, whether the parents first education requirements. Therefore, Su Li article logically from the legal education began to talk about the legal thinking. Su Li admitted the existence of "thinking like a lawyer in America" (Thinking Like A Lawyer) such formulation, and lists the requirements there is indeed a American law school teaching, but he tried to explain it from its objective, to deny the existence of "legal thinking". He said, USA legal education in the "Thinking Like A Lawyer" just to "hope they (the first grade students) familiar with Anglo American law as soon as possible the basic system environment and the analysis of some of the basic skills of reasoning". Regardless of American Su Li legal education in the "Thinking Like A Lawyer" for the accuracy of such understanding, are the "basic skills" analysis of the reasoning is not a legal method? Is it not contain develop level methods of legal thinking of the requirements for the students?


        According to Soviet power point, is the "basic skills" not saying law person is not equal to "legal methods"? From what he said "deconstruction 'law thinking' does not deny that the interpretation of the text, doctrine, 'literal' and legal reasoning and other professional skills training. This is still essential, irreplaceable "this sentence can know, Sue and no professional skills and legal method of negative law of human existence. This is the premise we may also discuss and reach a consensus. Here, a formal logic we will find Sue force errors: on the one hand the law people are required for professional skills and methods of training, on the other hand, the existence of negative legal thinking. The legal person has the professional method without professional thinking, just as "square circle", this is really unbelievable. Is it legal method is behavior rather than thinking? We have seen what occupation of the judges use legal way of thinking, is to think in the hands and feet?


        We cannot rely on the existing scientific means to see clearly the human thinking activity of human thought, it does not exist, or that human thinking only of the behavior, not that the mind is the behavior. Su Li said, the so-called law thinking, in fact just behavior. {10} if the important factors of legal methods of legal thinking, legal thinking "is not the only behavior", all of these methods, technology, skill is manual operation technology of legal person? The legal person in manual operation? Reluctantly said, this can be, how to perform such as how judges to participate in the proceedings, the judge how to notice in knock gavel, how to draft out and print the verdict, the execution court judge. But the judge occupation activities of the real and essential performance? Obviously not, judges except occupation thinking what's left?! The rest of the "behavior" with respect to the judge thinking, is almost negligible. The judge is a judge, the judge of the so-called "behavior" should only through the brain for judgment. Prosecutors are different, their "behavior", including the prosecution supervision. The prosecution is to transfer to the judge thinking judgment, supervision includes supervision judgment of the judge thinking. The lawyer "behavior", including the defense agency, including the urge to judge thought, from the angle to the professional thinking led to the judges thinking and judgment, the lawyer is not thinking there is no way to complete its defense and agency work, the main legal human thinking constitute part of all its activities. Professional (or occupation) features first, "professional relates to intelligence, mental skills, rather than physical or manual. English mentioned 'professional', 'learning to develop common through professional' (learned profession) a word, to emphasize the occupation and trade, the different processes, professional to rely solely on the brain". {11}


        The way of legal thinking is different from the method of law, but the legal thinking is based on the mode and method exists. Legal methods more specific performance for thinking skills, such as legal interpretation, filling in gaps, not identified in terms of the specific applications of dogmatics of law and legal reasoning method. And the way of thinking is a kind of application specific method of occupation and the formation of long-term thinking habits and thinking mode. {12} legal thinking based on the legal method and legal thinking, otherwise no to exist.


        Su Li recognition of professional skills and legal methods, but the law does not recognize people's thinking or legal thinking, this is not logical. Let us have a look have not been Su Li negative, not according to the logical relationship are comprehensive "text interpretation, doctrine, 'literal' and legal reasoning and other professional skills training" exactly is what things? Interpretation of the text probably refers to all the legal interpretation of legal interpretation, this is not standard. Dogmatics of law usually refers to a scientific and normative legal method of continental law legal concepts or comments from Italy law and developed theory. "Kouziyan" is obviously the folk saying, say Orphean dot refers to the legal person rigorous treatment under the provisions of the law, that ugly point fingering law people chew over. "Legal reasoning" is obviously a formal legal method, is a kind of activities suitable for the use in Anglo American law inside, also has methodological significance. Continental law usually does not directly use the "legal reasoning", but different approaches but equally satisfactory results and some legal methods in continental law. Therefore, these four things are is totally illogical. It is difficult to understand, the Soviet force are not a complete list of legal methods, but arbitrarily denied legal thought exist? Only that, Su Li does not concern or not seriously legal method, mingled with the legal method and vague prejudice.


        Su Li hand to recognize the existence of legal methods and skills, on the other hand, does not recognize the "law of human thinking". How did he consider this problem, to our puzzle. Does he want to say: the so-called "legal person" itself does not exist? In fact, he has boldly said -- "there are people who want to build the legal community...... This is an impossible task "(from the presidents of third parts). Furthermore, Su Li Is it right? Want to say "the rule of law? Well, this is a mission impossible "? Indeed, we humans are afraid of difficulties, but people never stop to overcome the difficulty of. If because of difficult things, but to give up the pursuit, and in view of the difficulties to deny all the ideals and beliefs, even if the re write beautiful, is also a lack of scholars should bear. Chinese literati has always been a "morality, skilled artist article" spirit. In the present society, a scholar still bear the enlightenment, leading the social responsibility? If not to try to change the backward reality, to pursue the ideal, it should not only admit the reality, deny the ideal, to exaggerate the difficulties, rationality and reasoning behind the phenomenon of. It makes what explanation?


        Zhu Wen misunderstanding is the law of human thinking (legal thinking and legal occupation) and legal method separated. For legal person, legal thinking is a special method for occupation and the independent existence of. We can't imagine a person, thinking and method of his thinking can be separated. We also can't imagine, a legal professional thinking in the case of no legal method.


        The independence of the uniqueness of the two, legal method determines the legal thinking


        Let us have a look the contents of legal method. Dogmatics of law of legal interpretation, legal loophole filling, general clauses (concept) of special application, constitute a legal method of continental law system. The Anglo American law system and formed a "distinguishing technique in case law tradition" (the distinguishing technique), also the focus of legal methods in "legal reasoning" (legal reasoning, legal reasoning becomes) against the law in Anglo American Law (jurisprudence) referred to as a method of. From the Anglo American legal point of view, each link of European various "legal method", there are legal reasoning. If none of these methods, there is no legal person professional way of thinking, is not a "law of human thinking". The key question is: These are not peculiar to the legal person? Or non legal professionals are also commonly used?


        A method of optional method in our law, combined with a simple "Pediatrics" case to illustrate.


        The facts of the case: a 3 year old boy and his mother in the yard a neighbor B, a talking and neighbour B, children with the yard cock B home play, but left the rooster peck, urged the court to prosecute neighbour B.


        In this case the problem is: neighbour B should not be lost? The number of claims?


        We assume that the legal person and the mother are well known for the following two articles:


        One, "general principles of civil law" provisions of article 127th "domesticated animal causes harm to another person, the keeper or manager of the animal shall bear civil liability";


        Second, "the general principles of the civil law" 131st stipulates that "the victim also at fault for causing the damage, the civil liability of the infringer may be reduced".


        This is a fact very simple case, let the aunt when old uncle, also can make judgment, conclusion, and the conclusion and the legal judgment would be pretty close, but the difference between them is that reason (reason). Remember the sarcasm judge as saying "the judge often error prone on the reasons". Indeed, the judicial judgment is the most important reason. The law - language cloud "vague and uncertain reasons not compelling reason" (Causa vaga et incerta non EST causa rationabilis. A vague and uncertain cause is not a reasonable cause), the significance of legal methods is clear and provide sufficient reasons for judgment, and the conclusion is the test.


        Then, the law of the legal judgment in the case is how to make? Thinking process? Two main syllogism here involves judgment.


        The first syllogism, it can be concluded according to the "general rules of the civil law" provisions of article 127th,: B shall compensate.


        Second judgment is based on the "child mother has no neglect of discipline duty" the problem that after the judgement. Upon investigation, the child's mother is compulsory in lax discipline. Then, begin to apply the general principles of the civil law "article 131st". Note, this clause "the victim is also at fault for causing the damage, the civil liability of the infringer may be reduced". The aunt in no lawyer help, is likely to have no "victim" concept. Because the victim according to conventional understanding "(" text of the plain meaning interpretation) in this case refers only to the aggrieved three years old children. But the minor does not exist any fault problem on the law. The facts tell us is the child's mother is at fault. Then the mother's fault can not be the fault of the victim? The aunt would say, or not. She was not trained, will not be able to carry out legal thinking, more can't answer the question from the legal method. If the mother as a commissioned agent, she started to insist that victim does not include mother, family lawyers will argue her B. If she entrusted to as Party B's agent, she argues that the victims included a mother, a lawyer will argue with her family. Aunt cannot in this case legal thinking, giving the other party convincing conclusion.


        At this time, only the legal professional through legal thinking, use legal methods, in order to solve this problem. If he doesn't use legal way, even the legal professional here will be uncertain, therefore, judges often will therefore "wishy washy" type of mediation.


        Methods the correct, legal person's thinking is: the "victim" concept into the law interpretation method of subsumtion (Subsumere), is a control specification (premise) and fact (minor), "between facts and norms both circulation" (Engis "in the premise and the fact of life. Vision of the round-trip transfer") or shuttle back and forth (Wang Zejian) or "look right and left". "Legal thinking requires people to not only focus on the specific life in turn attention to abstract outline of life". {13} "any rules are compared with the facts (control) produced by the process of" be an easy job to -- we can find this sentence in the continental law works, but it is also a law professor common consensus. {14} common judge also cannot avoid this "from rules to fact, and then from the fact to the rules", "look right and left". Su Li can not say that "look right and left" is the act or action? Larenz was keen to point out mistakes in understanding the prone, he said "we can't look facts and law bars' round circulation: 'as just judge vision changes, it should be a process of thought, in this,' unprocessed facts' gradually transformed into the final (as a statement of the facts of the case), and (unprocessed) specification is transformed to a canonical form specific enough and suitable for judging the facts of the case". {15}


        In the case of second syllogisms, why can take the "victim" (being pecked blind children) concept was expanded to its mother? Although this conclusion is obviously, the interpretation of law, who is also very simple "Pediatrics", but it must be pointed out that expanding interpretation (some say "of course to explain") reason: the mother and children in the interests of integration view, "victim" expanded to "the victim a party", so the "juvenile victim Guardian" fault also expanded into the "victim" concept. According to the legislative intent is, contributory negligence is to achieve a certain balance between the offender and the victim's interests. The possibility of {16} mother to child three years old damage should be foreseen but neglect of discipline. In 1991 the Supreme People's Court judicial interpretation in a similar case also made a further explanation, but without the legal method, think "Zhao (the victim) mother care for Zhao's not weeks, also have a fault, should reduce the Yin (the infringer's civil liability)". {17} I think the thinking and conclusion have the legal person many judicial interpretation of the Supreme People's court is correct, but often from the legal method of reason, this is not appropriate. So far, the aunt would say "this conclusion I can guess". The crux of the problem, such that outsiders at the same time, usually do not give a methodological reasons, some people even think that this approach is too simple, almost pants fart -- make an unnecessary move. The more complicated case? There are laws more complex methods (reasons) problem. Besides litigation cases have opposites, both of you how to persuade a conflict of interest? There is no legal method can't do anything.


        Through the above case we can roughly know, we say the law is a special method of Occupation: first, because the concept of law law constitute the majority of people thinking of basic materials and objects, though derived from daily life concept, but by lawmakers and legal occupation gives members of special legal meaning, such as "residential" in constitutional hermeneutics, also includes hotel, hostel, school travel tent etc.. Such as "violations of housing rights", not only refers to the direct penetration residential physical space internal behavior, in the method of hermeneutics, can also be included in the residential external directly or indirectly through the internal appliance peep or eavesdropping residential general private life behavior. {18} as a layman, he don't know how to solve the legal thinking and methods. Secondly, because the legal method is through the occupation legal practice, and by legal scholars summarized into, and legal thinking is not for outsiders to obtain. Thirdly, because the types and content of the method is the mass does not have method, or simply is inconsistent with the way of thinking of the public, and even the John Adams (John Quincy Adams) is the extreme that "legal logic is a kind of artificial reasoning system, only for the court, on other occasions is useless". {19} although exaggerated, but also illuminating. Fourthly, because most methods of legal methodology is no other in the social sciences. Judge Ruggero J. Aldisert said the premise of legal reasoning, in a statement, must from some authoritative source (such as the constitution, statutes or case law), this point and the daily life of reasoning in different. We can't just because we always believe that a proposition is true, from the beginning of the proposition. {20} even in the legal interpretation "sociological explanation", a perspective is law with sociology perspective, will from the rule extends to the social facts (not really have what society to guide the legal methodology created method). Fifth, because it is without formal training or occupation practice difficult to master. Only in the civil law methodology of "right of claim", because it has the proper advantages suitable for practical needs, economic, security problem of {21} content, Germany, Japan, Taiwan and Chinese China continental civil law and civil judicial practice application. But "claim" is not a day for a year in January can grasp, even professional law teachers, may not be able to quickly grasp and use, it needs continuous training. Don't learn and master certain method is hard to develop the legal person's thinking, it would be very difficult to say he is the legal person qualification. Of course, a person spent four years at a low level of law school legal education for four years, more or less will learn some legal method. Even low levels, also have some legal ways of thinking. If he is to work in law firms or the court, then the practice ability allows him to further strengthen the legal consciousness, strengthen the legal thinking method. Or, when a person without legal professional learning and training, such as the demobilized soldiers into the court, also will be influenced by the gain legal thinking and legal methods in the process of learning by doing. "Our current law enforcement, whether it is a sheriff or magistrate, do not suffer from the fear of the unknown can not be free, science, do not suffer from the limited logic, lest their no concept". {22} Mr. Wang Boqi's words, is also applicable to China, today's law.


        Legal thinking law people have an independent of the mass? The answer is affirmative, this is determined by the unique legal methods. The relationship between legal thinking and legal methods is not separable, have what method, what kind of thinking. We think, can not be "thinking features of law" is the practice of law, which is recognized by the su. But he believes that the legal person's way of thinking, characteristics or habits summary, "not only still ambiguous, more important is the experience is very difficult to set up; the unique legal person established is not unique, nor be apt summary". Very glad to see the Su Li admitted that the law of human thinking there is not appropriate in general aspects, the author sincerely ask Su Li, please help replenish the characteristics of legal thinking unique writer. Su Li in six point of the author about the legal thinking habits general criticism, considering the length of this paper, the author makes no response to the details of the one one. As mentioned before, the legal person despite the system role differences, there are differences of some thinking, such as prosecutors "objective" duty is different from the "neutral" obligations, and different from the law of "price" obligations, so they thought would have some differences, but this not enough to constitute a denial of legal thinking habits and characteristics of the more common.


        Zhu Wen in the fifth part, "every legal person has the system role himself, bear specific responsibility system", "different trial level judges also exist differences" as an excuse to deny the existence of legal thinking. To see how this problem? Of course we know the legal person has the different institutional roles and responsibilities, we also acknowledge the institutional role of judges, prosecutors and lawyers decided there are some differences between their thinking, but their basic thinking habits and characteristics are the same, sharing. Su Li also to "flag burning case" that prosecutors and lawyers "and shared the judgment before the argument to a considerable extent, the conclusion before the reason" way of thinking or characteristic. Here, it is actually very simple -- Su intentionally or unintentionally ingenious confused the prosecutor (or a lawyer) pre judgment procedure and where they are in the litigation process. Prosecutors or lawyers of their pre sentence (prosecution or defence) by the thinking, just procedures of intermediate links, but not all. They had finished their work in aspects of thinking, they are before the judgment, before the conclusion demonstrates the reason of. "Prosecutors flag burning case" is through the evidence analysis, fact judgment and concept analysis and reasoning method comes out of his judgment. Although the "initial judgment" will also guide lawyers or prosecutors to a great extent, but the "initial judgment" is just an "unconscious" (such as Su Li said), it still cannot let him worry and effort -- after all, analysis of evidence and legal concept is not the province. Anyway, if you really have the conclusion, also have honest "Mount Hope ran a dead horse" to do a good job for each required homework. This is a legal requirement for thinking, this is the system of legal thinking. During the trial, prosecutors and lawyers work and become a part of the whole judicial procedure, become a chain of whole procedure of reasoning, a form of the judge thinking judgment result, make the judge concluded substantial judgment. The prosecutors or lawyers when handling the pre sentence and then into the proceedings the whole, they are in accordance with the procedures of ethics, this by the system and ethical support in the judicial ethics in the world. {23}


        Why do we say that a unified formal training is very important? This is because the professional training method can obtain the community is widely recognized, the formation of community consensus. The judges, prosecutors and lawyers three party role, even if the legal concept, legal methods and ways of thinking are different, so how they said to go? Every country in the world to make judicial qualification examination of unity, is to make the concept, three part of the method and thinking together, become a community. Many countries have the system of selecting judges from lawyers, but also because of their concepts, methods and thinking is the unity of the. If Su argument can be established, then, countries should cancel the University School of law, the cultivation of legal talents should respectively by the National Judges College, National Prosecutors College and national law college; the state should cancel the uniform judicial exam, back in 2001 before the judge, Prosecutor Qualification Examination for qualification examination and the lawyer qualification examination. Su Li always examples of non professional who is doing very well, this problem involves legal workers professional assessment in practice, the situation is relatively complex, containing the further elaboration.


        The legal method is known as the "legal methodology", because it is in the legal person's unremitting efforts, in the continuous development of evolution is fine, the existing system, and even complex skills and methods of its internal. These are the laws of human thought, to sum up, through the joint efforts of jurists and legal person combs and summarizes a relatively reasonable legal thinking method, called the legal method. Such as the German civil law scholar Karl Larenz's "methodology of law" as a law student textbooks, which is about the method of legal person how thinking. {24} Karl Engis's "legal thinking" from A to Z introduction, is about the meaning and structure, from the legal norms to obtain legal judgment (inference), get the abstract judging from the legal norms (explain), law (applicable law uncertain concepts, general terms). {25} served as a judge has long been engaged in legal teaching professor Wang Zejian wrote "the legal thinking and the civil case", of which the first chapter emphasizes one through learning the law, usually can obtain the legal knowledge, legal thinking and the ability to resolve the dispute three. {26} Huang Maorong's "law and modern civil law" from the legal concept, legal logic, legal interpretation, legal loopholes and supplements, to methods of legal system, is a legal thinking about the legal person are discussed in this paper. {27} copy of the German civil law in Japan after the Meiji Restoration, the legal methodology is mainly concentrated in the hermeneutics of civil law. The author lists these, is to explain in the tradition of civil law countries, the legal method is very important and popular. Therefore, the tradition of law country Chinese such, is necessary to suggest that all of the schools are offering legal methods course, or all the departments of law teachers in the classroom to teach legal method.


        As for the Anglo American legal thinking, we'll have a look which later, have a look that does not depend on the unique legal method and legal thinking to the myth is dashed to the.


        Three legal thinking, legal in what sense is not a legal thinking?


        As you have noted, the author has been to distinguish "legal thinking" and "thinking of law". That is to say, the layman on legal, not equal to our so-called "legal thinking". Su Li said, "a basic question is, isn't the law must know the law, but not the must do not understand the law, not abide by the law" (Zhu Wen eighth). We are to discuss the legal thinking, not understand the provisions of the law, they press a root not directly linked, and Su force change the concept.


        "Even if being labelled as legal persons, are not really ignore all rules and regulations. Years ago, studies have found that the prison inmates to law familiarity is always higher than the average man or woman on the street; therefore, the so-called 'ignore' but we say a rhetoric. People never refused to rule or standard, never deny rules binding on the people "(from the presidents of sixth parts). In fact, Su Li concept to "common people are law-abiding" understanding "are also has legal thinking".


        Thinking difference between law and business is not take the rule or ignoring the rules, but whether to use such as interpretation, inference, loopholes, legal argumentation and other professional technology about rules. The layman is respect and obey the law, legal person with respect to rules and a thinking habit is not to be equated. In fact, outsiders often in front of the rules shown very amateurish habits. Investigate its reason, mostly because there is no professional habits of thinking and technology.


        We believe that people will abide by the rules, respect for the law, but not because they have legal person's thinking. People abide by the law, respect for the rules, possibly because of social pressure, the authority of the law, moral reasons, or because the respect the habits, or because of fear of punishment, {28} or for its own interests. {29} also may be due to the layman and the legal person to have "sense of justice", but we must according to the relative standards "layman's sense of justice" and "legal person's sense of justice". Legal person's sense of justice of the standard is "he tolerated the unjust law difficult procedure," layman's sense of justice of the standard is "he is able to tolerate in the stability of law interests law injustice". {30}


        Su Li between the lines revealed a technical weakness, is himself a false target to hit. He put USA "Thinking like a lawyer" as is "to the first grade new requirements", he put the geographical law of human thinking of mechanical solution into "act" or "act according to the law in accordance with the law". Therefore, thinking like a lawyer turned is ridiculous; therefore, legal compliance has become the legal thinking, legal doctrine became "dead on provisions". This is especially concentrated surface now's the tenth part. He said "we must pay attention to, in the face of legal affairs, is intellectually challenging, it needs the law to think rather than mechanical deduction rules, must be the only according to law program or set can not be completed, or even can be completed but the parties or legal person is not satisfied even unacceptable the transaction, so the parties or customer or legal person, sometimes it may be the whole society, all want to change, development or limit the transaction. Thinking only legal person itself cannot determine the goal and direction, instead only first think about the goal and direction would be launched legal person, not only can the letter of the law on level, and to study the possible consequences, what are the legal, political, social, economic or just as constraints habits, how to in the law as well as in other way -- both change, respect or ignore -- these constraints." (from the tenth part of "Zhu) to enhance the ability of the legal person, it must go beyond the so-called 'law thinking', or to put it another way, the concept of legal thinking must be rich in experience level" (from section tenth). We must make law school graduates "in the face of new problems, and can not find answers when the law, what they should and could get help from where, and to the law practice law in teaching content, increase the content" (from section tenth).


        Su force which states that no laws, it is a special case of justice, rather than the normal case. For these special cases, it is not legal methodology about "law and" unknown ", without a law" and "uncertain" these three cases? There are just three kinds of main methods to solve these situations, namely legal interpretation, legal loophole filling and special application method. In the absence of Anglo American Law of dogmatics of law, resolve these cases also have no method and the legal thinking, but with the so-called "distinguishing technique" (the difference between technology and "legal reasoning") (legal reasoning) to replace.


        From the preceding quote passages, Su Li seems to take note of legal thinking and legal doctrine is equivalent to the medieval Italy. Su Li even understand it as only 80 of the last century China law school teaching provisions notes. However, the legal doctrine has over hundreds of years of evolution and development, become a legal statute law countries and regions of the one's special skill. Use doctrine is the vast majority of cases of the rule, with the sociological method is the special case of exception. "Dogmatics of law to determine the legal matrix and learning mode", "legal practice without legal doctrine guidance is confused", dogmatics of law "can be used in the function test system of legal norms that explanation, rules and facts culvert perturbation, and the reason for judicial explanation is consistent with" logic on the legal doctrine, "modesty shows just prudent people thinking in the box and normalized within observation and, for framing and normalized outside, then by the other knowledge to solve". {31}


        The business of respect or obey the law is not equal to the legal thinking, legal thinking is the legal professional learning through serious study comprehends, practice law knowledge and methods, especially the occupation thinking obtained from the Department of law knowledge and methods of learning in the training. Sometimes, why legal thinking and laymen thinking similarities or confusion? Because they really have the same or similar: both have in common is that they on the understanding of the rules of justice and understanding have intersection. Are communicated is because the final purpose of special thinking method in the legal thinking is to conform to most people's objective, namely the legal person and the layman in pursuit of the so-called law "purpose" is the same. {32}


        The difference between legal person and outsiders thinking is not the will to act. If the layman to act in accordance with the law is thinking, so without the law, they can also be in accordance with the "law"? According to the "law" do what? Now we do a simple experiment, we assume that a case be discussed is, at the same time it is not expressly provided for in the law. In such a scenario, we will find that the layman and the law of human thinking exactly where the differences. The following example shows this phenomenon I said.


        A university president received a report that some graduates of master often fighting, during the period of university moral corruption, asked the president to withdraw has awarded the master's degree. Most of the Academic Degrees Committee on members to think how can such a student let he graduated, more difficult to tolerate is also awarded the master's degree. So angrily ready to vote to revoke the degree. Here, strictly speaking the same no legal basis, the legal way of thinking, involving two without law provisions of the problem: one is deprived of the right to fight is the degree of reason? Outsiders (Degree Committee there are well-known academicians and scientists) usually most probably it did not actually happen to consider a reason -- we have a strict school of traditional university, on one such a bad student, how can be awarded a master's degree? But they are not from the legal relationship to distinguish, graduation certificate and degree certificate is two to have the different legal nature. You can because of the fighting serious and not award the diploma, but not because of the fighting serious and revocation of the certificate for the degree of master. Two is the revocation has awarded degree, is a "legal act of administration", {33} made to the administrative relative person unfavorable disposition, needs to have full proof. At the same time, often fighting necessarily constitute a "moral hazard"? If really have a "moral hazard", then the proof and prove who is responsible? It constitutes a moral corruption, Is it right? Become withdrawing degree certificate? Obviously, to revoke the decision of the school to administrative proceedings, must bear the burden of proof, there is no evidence and testimony cannot make decisions unfavorable to others. But the committee did not consider, think through majority vote, would be withdrawing degree reason.


        According to Su Li said, this is the "new problems", "unable to find ready-made answers from the law when outsiders", how to deal with? If the "outsider, know where to get help"? In the absence of legal basis under the law, people's thinking will cause them to question "the minority is subordinate to the majority vote" will be withdrawing degree reason? This creates a problem of the proper procedure, who completed a proof and examination procedures? Legal thinking habits or legal thinking common sense approach is: by the degree committee of specified or set up an investigation team to be responsible for evidence collection, review, examination of the program, finally have fight fact, whether morality and reason is withdrawing degree, make a judgment, and then submitted to the Academic Degrees Committee the vote. Excuse me, in addition to legal thinking, which the knowledge of social science will tell to face this problem how do you do it?


        Most degree members that thinking, is the typical and popular thinking. The outsider in front of the case, not because they do not know the rules without regard to rules, but don't accustomed to the methods and procedures for processing technology rules to consider the case.


        The case is so. Let us look at a public debate attitude serious, less is "entertainment" of the case, the legal thinking and laymen thought be totally different. May 7, 2008 "5.7 racing case" occurred, network appear various views (and even ask for the perpetrators of the death penalty), not to quote, because it is not important, here we only concern of the popular view point and focus, nothing more than the following contents:


        Traffic police on duty said only 70 yards too unreasonable.


        I love the fun car.


        What car to play? Or senior sports car!


        Parents do what? The merchant! Some are unscrupulous traders or merchants.


        Drag racing also hit the dead, two rich generation!


        You see the companion's face, so easily!


        The victim's graduates!


        The character and the victim are excellent.


        The love for eight years and is ready to get married this year, had been killed!


        Have a look the victim that picture, how cute it!


        The victim's alma mater Shangjie students how orderly.


        Civil popular indignation......


        The mass of the case concerned are not focused on the need to consider the legal thinking, but without legal thinking and methods, unlimited expansion of the external factors to consider. Thinking of the case law is a legal logic:


        A hit and run against the Is it right? Specific object (a crime against the object)


        Wrecker driving behavior is the transportation or racing excitement (the subjective aspect of the crime)


        Overspeed degree (the objective aspect of crime)


        The vehicle was partly modified (the objective aspect of crime)


        The perpetrators of legal age and mental disease excluded (crime)


        The victim has no fault (whether on the sidewalk)


        There is no force majeure accident at that time (such as by people intentionally crash)


        ...... {34}


        Remove the cases who are entertainment, streets and lanes or network has some serious discussion. Although is serious, but they and the laws of human thought control, mostly shows the difference between two kinds of thinking, there are differences and conflicts between the populace live logic and occupation specific logic. Of course, does not exclude the individual legal person and some cases of low-level error. But we have to admit this reality: the legal thinking is the presence of. Thinking and public legal person's thinking are different, and the law of human thinking is a professional logic a legal occupation, not only has the significant differences between the logic of life it with the public, there are tensions between serious. That law a unique legal thinking, not as Su Li said, put forward legal scholars but we Chinese no practical experience. According to our current reading, legal person's thinking was first revealed by the sixteenth Century British judge Kirk, he was with the king in the debate, that the law has "technological rationality", and the public reason is the "nature", there is the distinction between. {35}


        Special legal person's thinking, is not to say that outsiders can not learn, not outsiders not to outsiders, but without legal training and have no. If outsiders think it necessary, can also be learning and training, the methods of legal thinking, as legal person. This kind of special occupation thinking method is theoretically through education is universal, but from operational perspective, the needs of society division of labor, develop various kinds of professional, legal profession and the priest, doctor, teacher, first developed into Profession, but not trade, then generate a kind of occupation system (you don't have this kind of thinking can not enter the occupation community, which is the fundamental reason need occupation qualification examination place). Zhu Wen seventh said "the reason people won't listen to reason", to make a long story short, the mean network speech is nonsense, don't believe. This goes to the other extreme, expressing contempt for people and outsiders and even contempt. In the case of public expression, the reasonable demands there are people grassroots, is the so-called "brother is smoking is not a cigarette, but lonely", the people behind the passionate speech, is their "skinny" real public topic discussion. But some legal Su force outlined speaking, it is this way of thinking. "Not fine care of" law, logic, evidence, the fact the truth, just that great differences between mass thought and legal thought. This, in the case of "public opinion, theme and information symmetry" in {36} has been discussed, here no longer say.


        Four, emphasize the law of human thinking is not equal to despise the layman thinking


        Su Li always examples of non professional who is doing very well, even when the judge said the blind can also. In fact, the fact that the legal community, after all, is the individual and minority status. Su Li borrow Posner's words, Jackson did not go to law school, Cardoso dropped out of law school, hand in the practice of lawyer is a failure, while Holmes is neither a successful lawyer, nor the most as lawyers, judges...... And so the conclusion that the great hidden of the law is to go beyond the law. The implication is: you see, they are not so professional, has become the great judge beyond the law. Question and ask the author can be summarized in three points: first, the judge this great philosophers like what some in the human history of justice? Human beings can a few such talent judge? If the judge most is not the case, then whether the legal person needs to master the law through formal training? Second, you can use other extraordinary judge that tens of thousands of ordinary (typical) judges need thinking with the characteristics of the occupation? Why not from the most common legal person to treat this problem? Third, individual genius without studied law professional or are not good, you can remove them possible legal thinking and legal method study on the desk?


        At the same time, also want to see there are some links to the layman's thinking in judicial work, such as the small court in Britain to send some civilian judges as. Therefore, we must look to non trained people placed in what position, this is also very important. For example, the court judge sent to non trained on Western grassroots courts or town location, may be easy to do good. The non professional people on the nature of the president of the court with a management position, although not reasonable, but in China specific conditions may also be doing great. People are illegal law majors in the courts, we do not deny that they can in the case, learn some more even completely legal thinking. This is because, they are good at learning and good at adapting to the rule of law is not the perfect legal environment under the conditions of the people. More importantly, legal when the judges, but also by various judicial mechanism in judicial system constraints, such as "legal justice" by the collegial panel of restriction by procedure, the prosecutor and the lawyer constraints, by the judicial committee of the constraints, and had to learn in a passive state of legal thinking. However, from the perspective of system design, professional law judge when the judge has more than legal rationality. We have to consider the common and universal laws, to put forward the basic literacy as judicial personnel requirements. Otherwise, their job is to give individuals and society has a highly dangerous. Let not understand legal professional people (although know the law professional judges will perverting the law even prostitutes -- so we will emphasize the occupation ethics and professional skills of both) to handle the cases involving the property, personal life and even, the danger is that each of US citizens have to worry!


        We advocate the law of human thinking helps the legal right of claim, is not equal to the law of human thinking is the most close to the truth, legal person is not not make mistakes. If people exaggerate the legal rules and concepts of stability, mechanical dogmatic understanding of law, as a formal understanding of concepts, sometimes deviated from the truth, contrary to justice. The author in the past ten years part-time lawyer experience, met many such examples. For example, "Inheritance Law" stipulates that the seventeenth "from the book will by the testator to write," we in the computer and printing equipment and has already been popular today, not mechanical rigid the testator signed and sealed wills book printed with computer, not as a testament to explain. "Like all human pursuit and behavior, law also has shortcomings and danger. However, one can imagine, many legal excellent people pay attention, not without reason." {37} because of this, the system of legal methods not only grammatical interpretation, special application method also formed the objective interpretation, legal principle, to fill gaps in uncertain terms, even the so-called "legal reasoning beyond the law", in order to maximize avoid mistakes. But these are still unable to one hundred percent to avoid mistakes, because the law itself may have a wrong. As all the procedure is in the form of justice for a minimum of tools, in this premise, as far as possible to the pursuit of justice. The procedure just has the probability of relative truth, truth and truth finding program sense, can not guarantee the procedure as a quest for the truth, the truth and the real machine.


        The law of human thinking Is it right? Must represent the truth, the layman's thinking is of no value? Understanding this problem is very important, otherwise the legal person will have the misunderstanding and conflict of legal person, legal person rely on a technology that so arrogant, or as Su Li said "dragon in the world". The problem is, legal thinking is "is close to the truth in the law field," is not the law of human thinking is the most correct. For example, in the "Wu Ying case" of the controversy, Zhang Weiying believes that the criminal law on the crime of illegal fund-raising itself is unreasonable, "evil law". {38} we have reason to believe that he is the economics theory, the judgment of his crime of illegal fund-raising in criminal law provisions, not "legal thinking", but he was probably the most close to the truth, or at least in the future amendment of criminal law is correct. If in accordance with the law of human thinking, then how do we think? There may be two kinds of angle: the first is the recognition of the provisions in the current validity, this is from the legal thought of maintaining the stability of the law position; second kinds of essence and Zhang Weiying similar views, but the law will be thinking: to avoid apply onto Wu Ying through the legal method of what, or by what method makes Wu Ying to reduce the penalty is reasonable? It will use the legal person "above the law" thinking and methods.


        We don't need to because Zhang Weiying does not have the legal thinking is to criticize him or ridiculed him, there is no need to feel his point is close to the truth that people own thinking on Legal doubt, no self-confidence and even give up. Some people may worry that, unique legal thinking will bring occupation superiority. This is not inevitable, but also not is what bad thing. In fact, like pastor, doctors and teachers occupation occupation, have sense of superiority nor what side effects, said no but also add occupation honor. As physicians have a sense of superiority, will not expand to discriminate against people who know nothing about medicine. As for the doctor Keng patients phenomenon, it is the medical ethics problem. However, the unique emphasize law thinking, most need to avoid abuse of the legal professional superiority, should not let this superiority expansion to the discrimination and entrap lay people. The importance of this is the author why is that law occupation ethics, argues that legal ethics as a compulsory course for law school.


        Real mature legal person, know he was just trying to close to the truth in the law field, is the sacred responsibility of law enforcement in the scope is limited within the judge, only in positive effective decision making law, there is no need to consider their own judgment is the truth or the most close to the truth. Radbruch said, "because it is not possible to determine what is justice, so we must determine what shall be lawful. If it is impossible, so it is necessary to the authoritative behavior. Relativism is positivism ";" only those who have the guilt of legal occupation, can become the legal occupation people good". {39}


        In conclusion, our legal people need to maintain a humble attitude, to look at their occupation and work.


        Five, USA does not exist "legal thinking"?


        It is not difficult to find, Su Li whole article to America method as the background, USA judge, USA case, America theory...... Never also concern and continental law, the unreasonable things is to see. He said "thinking like a lawyer" just law school "to the first grade new requirements", in fact, it is very absurd. Accordingly, he thinks USA no "legal thinking". Su Li also said, Anglo American law and continental legal person does not have a unified legal thinking and method. This is a appear wrong judgment.


        In fact, in the whole JD education three years of law school, America require students to "think like a lawyer", and this occupation skill training, the aim was to make the JD students have been to that way of thinking should be the lawyer occupation. But, in the legal person business, still to this way of thinking and skills to deal with the real case. Therefore, the so-called "Soviet force only to the first grade new requirements", is not so accurate. Even after graduating law student, also still have to think like a lawyer. "Thinking like a lawyer" has its inherent, but even so, certainly not "there is no legal thinking" conclusion.


        As everyone knows, there are some differences between American and British judges and continental judge methods of thinking, but they not difference to even "legal thinking" does not exist. Don't really deny the existence of legal ways of thinking? As we talk about "on the South noodles, sweet potato, corn, not food", the habit of eating rice southerners did not like eating the noodles, corn and so on, it is true, but it does not mean that the noodles, sweet potato, corn is not food. Between rice and noodles are still common. If America judge without learning the legal doctrine German judge, denied legal doctrine is the legal thinking, this is nearly equal to the individual foreigners say "China chopsticks not tableware".


        In fact, we think the law is a legal thinking, does not negate the legal people in different countries have differences, differences also never denied legal person the same countries have proficiency in methods of legal thinking. However, seek common ground while reserving differences, discard the dross and select the essential to analysis, in the legal person inside the occupation, thinking there is always the same or similar methods of legal thinking, habits, and even law.


        We know America is a case law country, is the realistic jurisprudence dominant countries, so there are a lot of differences between continental law system and legal thinking. Legal person legal statute law and case law of the state in the rules of the major premise is there is a great difference, "conditions beyond the law" so very different, this is as everyone knows. A legal person under the traditional grammar, the natural formation of a strictly follow the established rules of dogmatics of law method, and the Anglo American legal people face are not statutory rules, so "above the law" has necessity and possibility. Of particular concern is the classic case, leaving mostly "law making" contribution has and revolutionary breakthrough of the case. Especially famous realistic, pragmatic judges, such as Holmes, Brandeis, Cardoso, Victor, Warren, Posner, they only have the individual judge prophet temperament, and most did not leave a non famous judge classical case is how to judge? Legal theorists will not give too much attention. So I often say "dissenting judge Holmes is great, because he is not an ordinary judge".


        Zhu Wen cited the work of Frederick Schauer mentioned "the rule of law, precedents, authoritative, analogical reasoning, common law, legal realism, legal interpretation, judicial opinions, make law (rules and standards), legal issues and questions of fact, the burden of proof and presumption", these laws are not human thinking insist on, what is it? Su Li said, "all of which and the common law, especially America judicial system and its operation, can say, thinking like a lawyer, is a general understanding of the legal person in a what kind of specific institutional environment, rather than an abstract judicial system environment to work and think". In fact, we should admit that, different legal traditions to create legal thinking method of different style, but not equal to the said laws were not unique thinking. Furthermore, different legal thinking style will have and should have the characteristics of thinking in common.


        As an important traditional Anglo American case law difference technology, thinking it is not legal person, what is it? Legal thinking method of the two law systems are different in style, not equal to say that there is no common ground between them. For example, concept analysis has features in common, both of the two legal systems need to explain the concept, need to expand or narrow concept and use all kinds of legal thinking. Therefore, can not be used USA situation argument to deny the existence of legal occupation thinking. Nevertheless, the Anglo American law system in the case distinction technique, is a kind of occupation thinking method. The judge America from case to cause harm to people "danger" into the nature of risk (inherently dangerous) and emergency risk (imminently dangerous), the defective gun, mislabelling of poison, and defective shampoo, scaffolding, Coffee furnace and bottles are classified, the defective vehicles, explosion lamp, defective saw a balance wheel and the boiler is included or excluded....... {40} these are the method of concept analysis, careful analysis will be found on non specified it with the continent law inside the method used is similar. Such as the famous Rome law ostrich induced injury case, {41} Rome lawyers think, all the ostrich should bear liability, its reasoning process is adopted the method of analogical reasoning, that is based on the "similarity", {42} must also apply to the same dangerous bipedal animal. Four legged animal of all people should bear the liability of damages provisions, the legislative intent is all the animal as the bundle animal obligations, to avoid damage to others, for any animal, whether it is two feet or legs should be so.


        Let us look at a concrete example of Anglo American law. In 1916 MacPherson v.Buick Motor Car Co. case, the defendant Buick Company sold a Buick car to car retailers, retailers and the car sold to the plaintiff Mcpherson. As the car wheels have defects in manufacturing, the car in the road suddenly overturned by the plaintiff Mcpherson hurt. The evidence shows that, if prior the reasonable inspection can be found on the wheel defect, but the defendant did not. The manufacturer and the victim did not contract relationship, the law does not require manufacturers to consumers have a "duty of care". However, because the plaintiff is not directly from the defendants directly purchased the vehicle, so the defendant should bear the liability for negligence, is still a question. This becomes a key problem of processing the case where.


        Judge Cardoso for at least 3 similar cases from 16 cases, as follows:


        Case a: 1852 "Thomas v. Winchester case", drug manufacturers due to the fault of the poison belladonna agents posted to the dandelion preparation label, causing poisoning. The court convicted drug manufacturers have the responsibility.


        Case two: the 1882 "Devlin v. Smith", the builders made a faulty scaffolding to paint division, the division of the employees from the paint on the scaffold down to death. The court sentenced the builders have the responsibility.


        Case three: the 1909 "Statle ray manufacturing company case", installed in the restaurant large Coffee pot explosion, resulting in customers. The court it is the responsibility of the manufacturer.


        Cardoso judges in the judicial process of thinking, is trying to from many precedents concluded the applicable legal rules in this case. The first case is poison poisoning, second is the scaffolding fell, third is Coffee pot explode. Judge Cardoso to use the difference between "technology" case and the legal reasoning, looking for from three cases to the common point, namely "inherent" or "imminent" dangerous goods, can not consider whether there is a contractual relationship, the manufacturer shall make compensation. Its success should be attributed to the "safety in numbers and analogy are similar is confirmed with correlation". {43} the case relates to the "tort liability", "product liability", "dangerous goods", "imminent (immediate) analysis and comparative risk" concept, also exist from the specification to the fact between circulation, shuttling back and forth, visible in the difference method of case law, not only has the legal thinking, and still there is a legal way of thinking and concept analysis.


        We clearly saw the high consistency between the analogy method of continental law system and Anglo American law analogy method in this case. Cardoso put the analogy instant danger car tire immediate danger and Coffee pot, as the law of ancient Rome as the ostrich tort and tort of four footed animal analogy. So we have reasons to believe that, analogy of common law jurisprudence difference technology and on civil law, in fact, the use of the method is the same: they all use the analogy reasoning logically, by the judge thinking then verdict. Unlike the statute law countries is to reverse the order of the judge, the judge is not written rules in Anglo American case, through the legal method to solve the case and create rules.


        Thus, the legal thinking of British and American judges and European judges are interlinked, similar. Therefore, judge Cardoso in the "properties" in the judicial process, precedent is not Maitland so-called "legal workshop" (or "legitimate forging") the only tool, "precedent is behind some of the basic concepts of justice, which is the prerequisite for judicial reasoning". {44} we will notice, Cardoso's masterpiece "the nature of the judicial process" is a work of nature law what? Is the law philosophy? Is the law sociology? Are not, strictly speaking, this is a film about the legal thinking and legal method works. We see the contents of the book, the first is about the judicial philosophy method, the key second is all about interpretation of the history of legal justice, Chapter 3 is about the social law judicial explanation method, fourth case analogy method is about justice and its innovation. These are not in the way of thinking and speaking USA judge? We deny that there are laws of human thinking in the American?


        Su Li at the beginning of this article for "thousands of customers (Schenck) case", in fact it is the judge in the legal thinking to explain the concept of "freedom of speech" paradigm, using the fill method the thinking process is a legal loophole. Su Li said "Holmes...... The judge does not need to care about whether this speech, whether the expression, also should not be concerned with expressing content do you agree and anti break, but to care about the social action can be called 'express' can lead to what consequences, much, much risk and risk when "(from the presidents of second parts). Su Li wanted to use Holmes case how to skillfully "concerned about the consequences of" without considering the rules and concepts, to deny the existence of legal thinking. In fact, Su Li in this confused two "consequences": one is the consequences to the parties, this is any judge must consider; two is the judge consequences, this is controversial judicial consideration factors. On the act of Party effects, does not belong to the so-called justice "we discussed about the consequences" and "consequentialism" consequences. The consequences of judicial doctrine so-called is caused to consider that the judges judge social consequences (or social repercussions).


        Let us have a look how Holmes uses method of law case in this case. This case is not that Holmes only cares about the "consequences", in the author's opinion, the fact that Holmes was more concerned about the rule, because this rule was flawed, "that belongs to the loopholes in the legal doctrine" (nachtragliche Lucken -- even though Holmes is not used to the concept). Holmes in the method is the use of the method of limit of aim, the legislative intention that the constitutional rules of the literal "balance the provisions, is too wide, so that the different case, under the same under a law, cause the provisions in its' different case, for the same treatment case'." {45} Holmes proposed his famous "obvious and immediate danger standard" in the opinion of the court, the concept limits the freedom of speech, but also restrict the constitutional provisions are too broad meaning. Here, Holmes not only did not abandon the "freedom of speech" constitutional rules and related concepts, and then based on the combination of rules and concepts, case (war, conscription is priority, legal concept is not out of the environment and the isolated), then makes subsumtion between rules and facts, further expounds the "freedom of speech" constitutional rules not applicable conditions. This is similar to the German law of "round thinking process" subsumtion.


        Su Li in his "thousands of customers," case of Holmes's opinion, said "now, I understand what is called thinking like a lawyer. This thought is not in legal terms, its origin, its specific meaning in the law (though the examination is necessary), but after reading a lot of legal cases slowly familiar, understand and master the judge concerned about what social consequences, why care about, he / she is how to in a specific way in judicial decisions gradually re define and portraying these legal words, these conventional word obtained what specific meaning in the legal practice, where is the boundary, and why "(Zhu Wen second). This paragraph is a description of the three points: first, the "reading a large number of cases" is analogical reasoning method, "concerned about the consequences" and care concept also rules of legal thinking, it is that an example of judge is "legal person's thinking". Therefore, Su Li words default "legal thinking" is how to form, not to mention the stultify oneself. Second, we can't just focus on the legal thinking of the tip of the iceberg -- judge from the social consequences of point of view to explain the law, it is the proper method of dogmatics of law, such as "Sociological Interpretation" or "sociological explanation," intentional expansion, balancing of interests, "shut the heart outcomes" is just a in legal method, but not all. Third, use legal methods is the "hierarchy" in the order ("it is one of the best law philosophy", {46} is beyond the scope of this article, whether or not), in most cases the usual, not sociological interpretation, purpose interpretation, objective expansion of judicial method easily applicable, but to obey the concept of the plain meaning interpretation, analogy reasoning. In fact, as the target expansion the legal method is a certain risk, easy to be abused, in ordinary cases are not common, but Su Li took this for the case of judge Holmes to fill the loopholes in the law to expansion (although Holmes's conclusion is correct), that is "method be applicable everywhere" to promote, thought is the most ideal method and much appreciated.


        Six, dogmatics of law is how to "above the law" both "consequence"?


        In the view of Soviet power, legal doctrine will chew in legal cases, master of dogmatics of law thinking and methods of the judge, do not know "concerned about the social consequences", do not know how to go beyond the law. Holmes seems to be the only judge that beyond the literal interpretation ("thousands of customers, case"), is the method of legal person of the real. But it is not the case. The legal method of tenacious vitality, besides it is able to faithfully interpret the law, applicable law, still there are loopholes or other shortcomings in the law it is "beyond the law". The legal theory in nineteenth Century in order to maintain the legal doctrine of "be the pink of perfection, only denied legal loopholes" exists in a very short period of time, but soon changed -- nineteenth Century German concept of law especially acknowledge the existence of loopholes in the law, and that can be through a variety of concepts, to compensate for the possible legal in some gaps. {47} as pulls Lentz said, "based on the 'value' of the law has also developed some methods". {48} otherwise, legal methodology will be how the law interpretation, purpose interpretation, expansion of sociological explanation? Otherwise, how can have the applicable legal principles, special application methods are general terms of uncertainty? Otherwise, how will the judge made law of Anglo American Law "(" and "Judicial Activism") and German law "law making"?


        The judge will not care about social consequences is not the problem, is the key to judge by what method of care cases social consequences. In fact, the occupation is not considered social consequences, they just want to use legal methods in legal proceedings to concern the social consequences. In fact, the legal doctrine is not Su Li think only dead legalisms and don't care about social consequences. The legal method in line with the "beyond" law text, with "beyond the law" approach, in the literal interpretation is limited shrinkage interpretation and expansion of interpretation, in addition to the logical interpretation have systematic interpretation, historical interpretation, of course, interpretation, purpose interpretation, constitutional interpretation, and comparative interpretation and Sociological Interpretation, but also beyond the law text. {49} in addition, method to make the law text with beyond the legal method, and the uncertainty by using the method of concepts and terms, some scholars called it the "value added". {50} if not for the consideration of social consequences, legal person why with so much beyond the legal method?!


        Legal methods most suitable to Posner or Su called "beyond law", it is to fill loopholes in the law. The legal method is for the loopholes in the law, must go beyond the law text, in order to ensure the legal thinking is above the law, to explore the law of social consequences (significance), political effect, the value of justice. Just fill the loopholes in the law and legal ways of thinking, in German law will include the following contents: analogical reasoning, habits (Law) supplement, judge law (such as law called "the creative individual evaluation"), jurisprudence and doctrine, policy, backward to supplement, expansion, limit of aim, balancing of interests. {51}


        Below, then from the point of view of a German case is how to go beyond the law judge. A German father wants to put half ownership housing grant teenage son. The father and son went to the courts at the grassroots level transfer, court staff to make temporary punishment, think because minor is the assignee, the housing ownership will produce the law not benefit, it must obtain the consent of his statutory agent to agree, while home ownership in this case the Licensor is minor legal agent, therefore do not meet the "German Civil Code" 181st against the agency shall, therefore, in the transfer of housing ownership, you must also set up a curator for the minors. The father refuses to obey court the interim measures, in its own name and in the name of the son to the grass-roots court raised objections, but the court did not support. Two people after twists and turns, finally won. The judge is how to think and judge? Take the limit of aim! Do not apply this rule, this case will not meet the purpose of legislation against the agency.


        Professor Larenz analysis: his agency legislation purposes prohibited in German law, is to prevent harm the interests of the principal agent. Because in general the contract, both parties stand is relative, there is a conflict of interest. But the facts of this case is a father to his gift of property to his son. First, not a commodity trading, do not need to pay the other costs; second, the other party is donative person's son, only pure profit; third, both sides of the case there is no conflict of interest, the agent will not damage the interests of the agent.


        According to Engis introduction, the German legal methods to present "law" principle -- "legal duty balance" (Guterund Pflichitenabwagung). Engis in the "Introduction" of legal thinking about a "termination of pregnancy medical case", which involves a vulnerability of the German law at that time. A gynecologist for a suicidal tendencies of pregnant women, according to a psychiatric evaluation conclusion (the pregnant women suffering from mental illness), the implementation of the termination of the operation for her, to prevent the Dutch act. But the German law at that time is not on the "one to save the life or health of the pregnant women pregnancy termination special provisions". The German imperial court could easily handle this case in the form of consideration, the judge can say "our criminal law provisions, for pregnant women to kill the fetus to inflict punishment" ("the German penal code" 128th). But the German imperial court through the "super law" principle -- "legal duty weigh" to fill the loopholes in the law at that time. The final verdict is written like this: "pregnancy termination doctors report, pregnant women in fact or presumed consent, at the same time, through an ability and the implementation of the actual situation of third people, is not illegal, as long as the termination of pregnancy for pregnant women from death or serious health damage only means to save the current risk of." {52}


        The use of legal methods to beyond the law, so as to realize judicial justice, in fact, be too numerous to enumerate instances. Continental legal doctrine method how fine? If not carefully read the hermeneutics of civil law or civil law methodology, it is difficult for us to imagine. The legal person of dogmatics of law lens, observed the types of legal loopholes and the phenomenon of different, and therefore the legal doctrine created the so-called "law making method". {53} Larenz talked about the three "law making": one is the legal interpretation of the court simply is making a law "; two is the" law of law, still in the legislators originally plans and goals are beyond the range, making interpretation limit method; three is the real "beyond the law making", but it is still legal order as a range, still within certain legal order. This is the strict sense of the so-called "beyond the legal method". {54} beyond the law Cardoso also acknowledged that, in order to "side" to seek law ideal, the judge must respect the law. He distinguishes philosophy of natural law and the modern law at this point that philosophy, they differ in that: natural law philosophy "to seek a kind of justice, natural law in the law; modern legal philosophy is eager for new or existing from law -- and those who will become the real law among the factors -- Interpretation of a fair and secure it down". {55}


        Zhu, certainly, Su Li exaggerated the transcendental probability and frequency of law. However, the judge in the majority of cases is the need for a doctrine, not in the most cases (especially when solve the mystery) will use "beyond law". But, in the use of so-called "Su Li method beyond the law", the judge is still fine consideration between doctrine and "above the law", which is a method of deep philosophical thoughts. When the legal method to focus on judicial philosophy, is intertwined with the contradiction between the corresponding number or "dualism". The judge between the two sides handle and balancing the pendulum, maintain a balance. Visible, legal thinking in "above the law" is not without conditions to arbitrary, but there is a relaxation of judicial philosophy. In this regard, the related articles in the future further elaboration.


        If Holmes or Posner from (or through) to Beijing Haidian District court or the Illinois state court judges, most of whom they encounter every day is the case in civil and criminal cases common, mostly to use rules thinking and conceptual analysis method is conservative, but not "the method beyond law". Their great wisdom in the Haidian District court or state court will lack scope for their abilities. Because of the large majority of cases the premise is the law of the. And Su force through the Holmes case to explain the problem, it is the legal premise appeared problem, namely the method of unknown, without law provisions or not sure, in all three cases, the judge how to go beyond the legal judgment. The judge does not use the thinking method and America, judge, so they're not according to these three kinds of problems for the classification of legal methods. But American judge familiar and common way of thinking, in fact, legal method of judge system in continental legal methods have, Germans fine almost covers all the American judge method, the author described not say which one is better, but also does not mean that the German judges a more brilliant than the American judge.


        In many cases, we should put on China legal prejudice and arrogance, don't think China law there is no American judge that judge made law or judicial activism case. Li Maorun v. Langzhong Municipal Public Security Bureau case is an example. In 1998 May, Langzhong City, Sichuan Province Shui Guan Zhen self-employed households Li Maorun threatened with a mental illness, many times to the water station for help, but the police ignored. One day, Li Maorun in order to survive, forced from two storeys to seriously, so sue the police station. After some twists and turns, the final court accepted. The focus of {56} in this case is: not as administrative cases, whether the administrative compensation? In this regard, China law is not made explicit, the judge how to think, how to judge?


        In March 20, 2000, the Langzhong court trial in public the administration "not as" case. For Sichuan Provincial Higher People's court "about the public security organs do not perform their statutory duties are liable for administrative compensation question to the Supreme People's court". In June 26, 2001, the judicial committee of the Supreme People's Court Reply in the case: "the public security organs do not perform their statutory duties, the citizens, legal persons and other organizations of the legitimate rights and interests of the damage, it shall bear the liability of administrative compensation. In determining the amount of compensation, should consider the non performance of statutory duties behavior occurred process and results in damage of factors such as the role of." A typical case of {57} this judicial interpretation is the judicial activism. By the courts through judicial interpretation clearly when the administration omission caused damage to the civil rights act of administrative compensation legislation, to fill the blank.


        In 2001, Sichuan Nanchong City Intermediate People's Court of final judgment of the administrative "not as" case, the decision as follows: "the public security organs do not perform their statutory duties, the citizens, legal persons and other organizations of the legitimate rights and interests of the damage, it shall bear the liability of administrative compensation. In determining the amount of compensation, should consider the non performance of statutory duties behavior occurred process and results in damage of factors such as the role of." This case is the court (the judge) social consequences of creative decision based on considerations, to make up for the loopholes in the law. From the judicial process characteristics, accord with the basic characteristics of America judicial activism -- law or precedent does not expressly basis, the law on the rights case, the Supreme Court through the expansion of judicial interpretation rights protection range, so this is the typical America type Chinese true judicial activism case.


        Seven, Chinese law theory really embarrassing to have no theme grasper?


        Chinese law theory whether there is Su called "embarrassing" (see Zhu ninth)? We acknowledge that the level of the overall research Chinese legal theory is not satisfactory, or even that is backward, individual researchers or embarrassing. In this paper, regardless of how Chinese legal scholars, this thirty years, the contemporary China legal theory of the research is not Su Li said "not a world without touching the ground", "rule by law, criticism, proclaiming" its research fields and become because of the requirements of the times is widespread. In a sense, jurisprudence or legal theory has more local than the Department of law, therefore Chinese law theory (especially the jurisprudence) and Chinese local special mission and function, {58} and Chinese legal theory is not effective. This does not need legal scholars like to praise the goods one sells. In China present this transitional period, the social need to contribute to China jurisprudence to creatively, have Chinese local awareness of the problem will be China legal numerous studies on the subject. Legal thinking and method has an important position in the study of jurisprudence Chinese, study together shall be made by the theory of law and law departments, to build consensus. Of course, legal thinking and method China jurisprudence is a part of, and not be driven into a corner when the jurisprudence research China only straw.


        Su Li also believes that, in the research of legal thinking and method, "no need to discuss the specific case, does not involve a specific legislation, therefore does not infringe upon other departments law territory, will not lead to the same department law competition or conflict, on the abstract study of legal thinking, legal thinking of pumping like" (from Zhu, Ninth). That's absurd. As far as I know, in legal thinking and method of outstanding scholars in jurisprudence, Zheng Chengliang, Ji Weidong, Zhang Zhiming, Ge Hongyi, Zheng Yongliu, Zhang Baosheng, Chen Jinzhao, Xie Hui, Chen Linlin, Chen Jinghui, Xingquan solutions, Jiao Baoqian...... They study which is not discussed in the case, do not discuss the concrete method? Even though some scholars is that, if the legal thinking and methods of interfere with it? Abstract to study the legal thinking and method of what is not reasonable? The legal method study is divided into legal method Abstract (and legal thinking) and specific judicial method (meaning department law, such as civil law interpretation method). The former is the theory of law (jurisprudence a philosophy of law) the object of study, the latter mainly research department of law. But the theory of law scholars can engage in judicial method specific research, such as professor Zheng Yongliu at the China University of Political Science and Law in the field of philosophy jurisprudence method of remaining, also researched and wrote "ladder" legal method, influence and contribution can not be ignored. Look at the foreign jurists, European Larenz, Kauffman, Alexy and Shi, engen Anglo American Hart, Mccormick, Larry Alexander, {59} and Dworkin jurists and philosophers of law, they are not to infringe the territory but is? Even philosophers like Dewey also to study the legal thinking, wrote "legal" and logic method, is also to invade territory? {60} in the study of contemporary western jurisprudence, a famous jurist is not involved in legal thinking method or any other legal methods to be utterly ignorant of the theory? Theory of law if the scholar does not open, devote themselves to learning to master a department law, the statute law as the research object, even if the long engaged in legal theory research and teaching, also do not grasp the essence of legal thinking.


        If a proposition is made based on some kind of interest, that is fraud or intentional fraud. However, "legal thinking" is not to create individual scholars from ancient to modern times, but the occupation legal practice experience and occupation accomplishment, they have in common is the occupation skill, in practice can become legal person sparse law rights, dispute the basic thinking method, who can underestimate the legal thinking of social reality significance?


        Further study, respect the law of human thinking, the unity or the maintenance of law occupation of thinking, has the vital significance. From the standard empirical sense, legal thinking and method exists, its significance lies in the "guarantee law stability". {61} "law stability needs legal positivism, if not clearly identified what justice is, it must be clear what is right". {62} if the legal thinking does not maintain this kind of particularity, let the judges, lawyers like the layman as to the occupation, even people inside are laymen, then the law we will deprive them of their "stability". We advocate the legal activities of professional and specialized legal occupation, the independence and autonomy, the establishment of judicial independence system or "judicial organs according to law the independent exercise of powers", the establishment of proper procedures to prevent the layman's invasion, the autonomy of procedure and relative isolation of space, what meaning?


        "The law of human thinking" is not only a fact, or an associated with multiple theory, multiple system theory. As a theory, it is not isolated, and it issues are closely linked: the judge faithfully to obey the law and legal purposes, to ensure the system of judicial independence or "judicial organs shall exercise authority independently," autonomy advocated legal occupation, assumptions or establish "empire of law", keep the autonomy law internal, that law is a "science of law", law of formal rationality, range between jurisprudence, adhere to the pure theory of law position, separation of law and morality, there are different approaches but equally satisfactory results between these aspects, the logical relationship they have internal relevance....... Although in the China present circumstances, with unrealistic idealism color, but we need this dream, need this kind of "knowledge {63} not to do for" the spirit of.


        Legal thinking and legal person's thinking, the great but ordinary significance lies in the formation of "homogenization" concept, thinking, method, beliefs and ethics, value consensus based on legal person, a "massive human rights coalition", {64} beyond factional interests, and then through the legal thinking and methods to thinning law rights, settle disputes, international competition, governance. {65}


        Eight, "the law of human thinking": groups gain? Or the value consensus?


        Why the law circle and law circle will emphasize the law of human thinking? Su Li thinks, "legal thinking that deep in an assertion" the power and knowledge, which we can recognize, but admit what? The judge's dignity is not so established? The lawyer was the demand of the society, it is not because their monopoly of some knowledge and skills? He said, "in a must to strengthen the rule of law for any reason era, the importance to the most convenient way to the social marketing of law and legal person the one and only and no alternative". This may be true, but the sales have what not good?


        Su Li therefore proposed a core point of view, that the law of human thinking "has been misread as truth" reason is deliberately group law. He thinks, this kind of "'law thinking' Pop was not mainly due to misunderstanding, legal person to be 'too simple, sometimes naive', but because this assigns some brave break out legal privilege and status" (from the presidents of ninth parts). Such judgment, must be positive, not speculation. Su force to "legal thinking" as is "sustenance, bearing and entanglement of significant interest from many Chinese legal person!" (from Zhu ninth). He said, "but these education and training helps only the legal person with a variety of words all essential judgment packing up, Chencang dark Du, in the literal hook even laws and legal decisions, but not good judgment in law in the face of unconventional case when necessary". The law does not recognize people thinking either, Professor Su Li you the legal thinking so evil doing? This "great discovery" Su Li said is true? Let us have a look his examples.


        The Supreme People's court in charge of the leadership of the criminal law explanation drunk driving appears, do not see the occupation lawyer stood up, points out that the claim has not comprehensive. Su Li believed that "the no response is to practice law an accurate response, not sensitive to the surface of highly sensitive in fact and legal are exactly the same, because once the basis" criminal law "article thirteenth for drunk driving the distinction, at least a criminal defense lawyer will Business Flourishes, rich resources, in addition the car in China practitioners lawyers are." (from Zhu eighth). Su Li, for example, that it is the legal person "suddenly floating". As Su Li said, a supreme leadership explained, "in the legal doctrine is fully established, the Supreme Court has reasonable consideration of social consequences". In fact, the lawyer silence showed that thinking and interpretation methods are recognized by most of the legal dogmatics of law, most lawyers do. Here is not so much the purpose and motivation, you are going to study the non lawyers don't sound motive? Take counsel motivation if necessary, also there is no need to make such speculation. In accordance with the law of human thinking, is also in line with the hermeneutic approach, why should a lawyer criticism of their own way of thinking of the judgment? Lawyers have to ask Su Li, Is it right? To your own some habits of thought and value standard to visit a lawyer? It was not even "a" lawyer, but even Chinese "all" lawyer. How do you know such a group's heart have a heart of mad about money? Even if the individual lawyers have such idea, as the legal person can not guess to assume, but not the legal colleagues heart hard to dirty to surmise and imagination.


        The force of the law on Soviet occupation thinking and law circles unique about the "legal thinking" speech, said to be the "reposing, bearing and entanglement of significant interest from many Chinese legal person!" With Posner's view, which run in the same groove. Posner said, "in this two kinds of market organization form (refer to legal occupation handicraft industry and transformation of the former medieval), is to create a community of ideology, refined and courteous to resist their products' commercial ', thereby facilitating cartel", "of the people to the letter the letter, because the them, believe these things are useful, and not because of what they believe is true". {66} however, stage of development of Posner's view may not be applicable to Chinese rule.


        How to understand the possible legal thinking in the wrong? Legal thinking of people make mistakes, legal thinking some legal person is not perfect, the legal methods will also be some lack of legal occupation moral abuse or misuse, some legal person has the occupation training with bad habits, some legal person is reckless thinking problems, but can not justify the denial of legal the existence of thought. First, the legal method is a system, including the interior from lower to higher, suitable for different situations of many independent method, needs the law to justice values to choose. The legal thinking errors, it is not considered legal methods comprehensively, no comparisons and selection of meanings of legal science of legal method. Second, even if the law were deliberately not correctly use legal means to solve the problem, also cannot deny the existence of legal thinking. Thirdly, though the law method fails, the legal person and has a conscience, legal occupation ethics restraint, guide him made relatively reasonable judgment. In fact, there is no failure problem of legal method, even in the face of what Dworkin called "Hard Case", still can have the legal method to solve and correct thinking.


        Su Li also believes that the "legal thinking" is because of legal theorist "embarrassing" caused by, like legal theory research is in go into a cul-de-sac, "legal thinking" as "a little academic and theoretical meaning grasper". Su Li Chinese jurisprudence pessimistic or contemptuous view, but also from Posner's "the twilight of jurisprudence". {67} Posner opposed formalist law Webb sense, do not believe that the meaning of the rules, limitations against the "conventional" jurisprudence ", opposed that legal reasoning to the ingrained". It is proposed American context based view, not against it.


        The careful reader will find, influence of outstanding judges Sue force these ideas by Posner the atypical. Read Posner's "Overcoming Law" a book or the translation Chinese version "above the law", will notice that Posner spoke of "comparison of industry and occupation in the first chapter". In Posner's opinion, the legal service market transformation (since 1960), "legal occupation has in fact become heterogeneous, their faith in laws will decay....... People are more likely to believe the letter, because for them, believe that these things are useful, and not because of what they believe is true". {68} first, Su Li did not face legal occupation Posner acknowledges the legal community or homogenization experienced the long process, this process since the Middle Ages to the "1960's.". In other words, from the twelfth Century European appear before the law occupation to 1960 years more than 800 years of occupation, the law as a legal community independent existence, Posner from the between the lines can still be seen, "legal thinking" there is no doubt. {69} so, in the eyes of Su Li, legal occupation Is it right? In 1960 time a day suddenly disappeared?


        The force of the law on Soviet occupation thinking and law circles unique about the "legal thinking" speech, said to be the "reposing, bearing and entanglement of great interest in many Chinese" legal person; Posner said, "in this two kinds of market organization form (refer to manual for Medieval and pre transition legal occupation), is to create a community of ideology, refined and courteous to resist their products' commercial ', thereby facilitating cartel", "the reason why people believe the letter, because for them, believe these things are useful, and not because of what they believe is true". {70} views this and Posner run in the same groove. We can conclude that, Su Li denied legal thinking, and view its against the law occupation "homogeneity", is a version of Posner in the view of Chinese. We had to refute: first, we look at how Posner on contemporary legal occupation "heterogeneity" point of view? This problem is one of the key. What is the legal occupation heterogeneity Posner referred to really mean? Posner is the so-called "legal occupation training and background more legal occupation" caused by the {71} and the diversification of "economic development" to the competitive enterprise? {72} but Posner did not acknowledge the legal occupation, already appeared to signal non occupation development. Legal occupation to the development of competitive enterprises, will affect the extent to which the legal occupation? This is the core of the problem. We may believe that the law occupation "homogeneity" will be discounted, but I do not believe that the law of human thinking will be lost, and we dare not say legal thinking not in this competition to strengthen. Which country's law occupation training and background are unity so neat and tidy? The judges, prosecutors and lawyers training is not neat. Second, even if it is in the USA facts, but some trends American this legal occupation highly developed countries, whether to have occurred in the China? How soon will occur in the Chinese? Posner's theory is sufficient or can immediately move to Chinese such a is building the rule of law, construct legal occupation country? Third, then a step back, even if the lawyer industry has been completely "to a competitive enterprise development", while the judicial officers will also have the same trend? Although American selection from lawyers, judges, but also not let the judges and court also enterprise, nor the occupation of, also non homogeneity. So the author thinks that, on this view, Su Li took Posner to give China said, is not comparable, there is no need to.


        We should also pay attention to the legal thinking American many judges daily, but not to Holmes and Posner as the representatives of many American judge. Speaking is not occupation judge Holmes in a sense, but a philosopher. Not a typical judge at least {73} Posner appeared in the academic research works, he emphasizes the legal economics, deconstruction and reflect the spirit of jurists. Typical of the judges are judges who have to deal with daily or normal cases follow the prescribed order of the day. A -- Americans even worship judicial mediocre phenomenon as described by Posner, if the judge especially competent, people will doubt his own "schedule", in the ups and downs of litigation in whether he is not satisfied with the waves when a buoy, is uneasy to when an indication of serve and suspend judgment. {74} as a judge, Posner in the usual case, must use the law of human thinking, thinking like a lawyer. Otherwise, if he is to go beyond the law violates the legal method, which for the parties, is contrary to the law, he will even by the party or legal colleagues who accused.


        Nine, the legal thinking "dualism": in the real setting between norms and social fact a degree of relaxation


        Suli stressed realism jurisprudence, against the legal doctrine, these two aspects in his opinion seems to take care of a relationship. In the author's opinion, emphasizing the importance of the legal realism or necessity is no ground for blame. However, should not be denied legal doctrine or legal person's thinking, because they are not be incompatible like water and fire. In fact, to discuss these two aspects and two kinds of judicial method view of confrontation, is the western philosophy of law and jurisprudence on the controversy has always been old topic, the real significance of this discussion with Su Li, perhaps this is.


        Special legal person's thinking is the law as "nature of normative science" decision. Law is a subject about interpretation of knowledge, so Larenz said the law is "to deal with the normative perspective law as the main task", "in short, the main to discuss the specification of the 'meaning'. It is of concern contents of empirical law effect, standard, and contains the court of judge". {75} however, legal problems of the controversial, are not standardized, there are many questions of fact and value caused by the problem. Therefore, the law of human thinking necessary need to go beyond the law, the need for value judgment, between facts and norms, the degree of relaxation, between closely the provisions and beyond the law, a degree of relaxation, tension between this is two kind of thinking. The standard and the social facts and confrontation relationship between two yuan, constitute the legal thinking in the process of justice "dualism", in fact, it is the logical starting point of legal philosophy.


        As Posner in a review of John Ely's "democracy and induce distrust" when, the judge in the thinking and method (path is also wrong.) there are two approaches: one is the moral philosophy found "basic value" approach, it to the judge's discretion too much; two is the "subject to the provisions of interpretation" approach, it to the judge's discretion and too little. {76} although Posner does not endorse the Erie two route, also don't believe that there are third routes, but that's not important. It is important that the "dichotomy" approach and Donald Black (Donald Black) two kinds of mode of legal thinking is similar to the paper. Donald Black thinks, "Jurisprudential model in observation and thinking about the legal, judicial approach" (jurisprudence) and "Sociological model" (SOCIAL SCIENCE) two kinds of mode. It is combined into the analysis, we can see, "law" also exist jurisprudence mode and social model. According to Donald Black of the "Jurisprudential model" description, it generally from the rules, logic, universalism, participants angle to explain the legal issues. Sociological model, from the social structure, behavior, variables and the observer perspective. On the Erie "fundamental value" approach to the sense of the word, should also be included in the Sociological model, because he is also considered in the substantive law. Of course, thinking and method of legal person is mainly Jurisprudential model, but not to the exclusion of "mode of thinking" sociology, namely so-called "way of thinking and beyond law". America legal realism represented by Holmes, it is the social science thinking. European jurists lead society in legal thinking on the basis of thinking, created the free law and the jurisprudence of interests. We have every reason to believe that the two modes of Donald's legal thinking -- "Jurisprudence Thinking" and "Sociological Thinking --" coexist, not neglected. {77}


        The theoretical basis of the legal thinking of "two yuan" the long-standing analysis. If you go back, can go to the law on scientific debate of Landale and Holmes. In the view of traditional legal person Landale the dull pedantry and respectable, law is a scientific system, can be in accordance with the general concept of scientific reasoning to construct the legal reasoning, he tried to put the legal construction in scientific basis and the theory of concept. In his view, the law by objective, neutral and determine the rules, these rules in all cases may occur in the correct result will be declared a single. Holmes caught Landale's rigid and dogmatic, while falsely concepts to critique of Landale's doctrine, claiming that "the life of law is not logic, but rather experience". {78} this experience also includes Holmes said "vomit" test method -- he just ask yourself whether you will be some evidence for this behavior vomiting can determine police violated the due process clause. {79} it shows the other side of Holmes -- like defy laws human and divine wisdom and a fanatical "legal illiterate". Radbruch in the two way of talking about the legal person, the legal person's sense of justice and the lay public sense of justice of the difference, and then he said: "if these two kinds of legal structure of mutual impermeable, them will result in the form of ants. On the one hand, the existence of a stick in the mud of the Philistine, he in the official field is the embodiment of bureaucrats...... ; on the other hand, there is a high fever, justice." {80}


        Chinese mainland scholars have put two kinds of thinking difference and controls, such as Ji Weidong in the "legal interpretation" in the meaning of the legal thinking is divided into "the legal determinism thinking mode" and "the judge's subjective thinking mode". {81} of the National Taiwan University professor Yan Juean in the "dualism" basis, also found five antithetical mode (we can call it the five pairs of opposite theoretical thinking mode, but with the law of human thinking is closely related, including the concept of law) and the interests of law, law and law of value neutral evaluation, system theory and case inference principle, legal realism and weak instruction jurisprudence, law and moral law. {82} this five group basically corresponds to the "Jurisprudential model" and "Sociological model" dualism.


        The two element division looks the theory thinking, but with the legal person of two types of attitudes towards rules in specific cases directly related. For example, Larenz to "force" a word as an example the difference specification and in fact of the "validity" of two kinds of meaning. He said, someone is bound by contract, shall comply with the contract, its meaning is not equal to the following statement: if do not comply with the contract, he must expect to face legal sanctions; if the expected sanctions will not happen, in the standard sense, he is still under contract at. Sociologists in their fields, if the breach of contract by the sanctions the opportunity to size as the standard, to use decision contract concept, this is not to be blamed. Sociologists have just described its de facto force, not the norm on the effectiveness of. Larenz therefore said, the law must know respectively two.


        Legal person Suli stressed attention to "social consequences", this thinking is actually should adopt method of thinking in legal person, taking into account and "rules". The check of this, we can see, the author and Sue force differences is the essence of the difference and conflict between the "two yuan", this is very normal. But the problem is that they cannot be, have the order reversed, more can't lose "this", abandon the legal doctrine of the one's special skill. I do not deny that the legitimacy of judge vomiting can test police behavior, but not equal to vomiting is the most persuasive power of judgment on. In short, can not be "above the law" sociological thought or philosophy of "value" approach arbitrarily exaggerated, or even replace the law of dogmatics of law, basic thinking.


        I very much agree with the legal development of the new changes in the article pointed out that Su Li, to new challenges and new problems that parts of the law of attention in the field of social economic development of science and technology leads to the. Indeed, it is our traditional law should be given attention, human law and jurisprudence should face the challenge, but that does not mean we should give up before the legal thinking and legal methods to face. Because of this, we need to advocate the legal change, advocating legal education reform, to meet this kind of change and development. We also need to promote legal education not only isolates himself in the specification of knowledge, but should be three-dimensional, dynamic, cross to consider legal issues, the problem (rather than the rule) as a starting point, to comprehensive cross (not law) as a starting point, to the industry law (not department method) as a starting point. {83} as Su Li said, "the same is true of many environmental justice, so only the environmental projects that -- think of what I had the civil contract to assess the claim" (from the presidents of tenth parts). Indeed, the social force of legal development, but it can't deny the fact most laws in the stable. Perhaps we can say, the legal problem has two kinds: one is stable, the two is the development of. We need to have two kinds of attitudes, thinking and methods to face.


        Therefore, the judge should stick to the rules, to become the legal guardian, but also a methodology to overstep the law when necessary, but mainly how to stick to the rules. Judges beyond the law is a degree, its essence lies in how to control the judge's subjective, there are some methods and paths in order to solve the judicial subjectivity. {84} in the case law judge, also should be created in the rules above thinking, should have more respect for the established rules (in the precedent rules) thinking. Cardoso said, "we must distinguish between static precedent" and "rheological precedent", "the former than the latter several times in number". {85} so, said Cardoso appeared in he served as a judge on the court cases, most of the reason is similar. We can also understand, even the British and American judicial also won't have too many opportunities beyond the law. Su Li also reminds the reader in order that the translator, Cardoso advocated "cannot easily be long accepted rules and precedents aside, just because these rules and precedents may result is not fair to a specific parties". {86} even Posner admitted, "decided to create new styles judges follow the predecessors, this leads to his loss of power, but if the judge refused to follow the predecessors of the decision, will lead to a loss of power, which would damage according to precedent decision rules, thereby reducing the younger judges to follow their probability decision". {87}


        Case law inference rule priority of dogmatics of law method and results oriented, between them and formed a "two yuan" relative. Therefore, the legal person ", it is the intellectual challenge" the most difficult time is not will be "above the law" and "consider the results", but in between the standard and the social facts to be a degree of relaxation, with two yuan in between the thinking mode of dogmatics of law and legal realism to achieve balance. As previously discussed, law thinking "dualism", dogmatics of law is the fundamental, is the main; legal realism is added, is of secondary importance. Legal thinking is the basic work of dogmatics of law based on, in the accumulation of social experience and continue to learn the knowledge of social science basis, combined with the social reality of the social consequences of judgment. Also because of this, the legal education should be adjusted accordingly, for example, from the standard of Education Department of law of moderate to educational industry law. {88}


        Statute law countries in the legislative level is very high, the rules of fine degree is high, the task is to strictly enforce the rule of law, method of use doctrine to solve the case, only in special circumstances can be "beyond the law". In the tradition of case law countries, legislation and the main form is not legal, so "above the law" consider the results for natural wind. The case to the distinguishing technique and reasoning case, there is no legal method of fine to follow, to judge the difference of technology depends on the experience is very strong, the judge is above the law, to consider the consequences of thinking will be particularly obvious. In Chinese, partly because of legislation technology reason, on the other hand is the legal tradition, there are social reasons, legislation "coarse". Therefore, the judicial interpretation of the Supreme People's court and the Supreme People's Procuratorate is specially developed, interpretation is the expansion of the trend. As China legal person, in the face of legal method and thinking of the "two yuan" choice, how the reasoning method of dogmatics of law and "judge" combination, become an important task of the legal person Chinese.


        Ten, summary


        Su force American Legal Realism (especially the influence of Pragmatism Jurisprudence), also influenced by Posner (ideas and arguments the negative legal thinking is mostly from Posner), the critical thinking Posner's point of view, to deny the traditional occupation has become's law idea. Zhu Wen reflects the Soviet force law standpoint, is roughly: the form rationality against the rule of exclusion of constructivist rationalism, rule of law, critical theory of occupation, contempt of dogmatics of law and legal methodology, preference of legal realism. However, the realistic law under the influence of the USA judge, premise of the first occupation of the judge, but also pay attention to professional training of judges. The essence of our arguments and Su force is about judicial philosophy, is the legal doctrine and legal realism the merits of the problem, methods of legal thinking methods of legal thinking in continental law and Anglo American Law on the merits of the problem, but also the formalist law and substantive law dispute, is the rule doctrine and the doctrine, is the natural rationality and technological rationality debate, is also popular thinking and thinking for occupation. This is very normal in the academic, the debate between, promote debate and academic prosperity, to a worthy of popularizing and deepening theory perfected even correction. However, the negative "legal thinking", the view was extreme. We would argue is between A and B which is better, or how to put A and B together problems, and Su force but assume that " A never existed"!


        I know, in the legal people, there are many capable of dogmatics of law and legal thought and methods of judges, prosecutors and lawyers handling cases, their business is exquisite, precisely because they skillfully rule analysis, using legal thinking and legal methods are very accurate. I also know, in the US and a number of teachers, they know the true meaning of legal education, understand the key of legal education is the teaching of dogmatics of law and legal occupation training of thinking, they know that such "bench" science and education is hard, is not the flowers and applause, but they were in the silence of dogmatics of law research and teaching, to Yu Yan law doctrine and keep on carving method to train the students. I want to through this article, to pay tribute to the legal person that unknown to the public.


        The present China judicature lacks a universally accepted judicial philosophy. For a long time, we did not pay attention to the legal person's way of thinking, not to strengthen the legal thinking training in law school class, not to mention the legal thinking of dualism to reveal. Therefore, the judicial problems entangled in occupation doctrine and mass (Democratic) realism, formalism and substantive rules, "and" consequence ", restraint and activism and a series of mutual confrontation of ideas the dilemma of legal thinking," two yuan "unclear evolved into judicial" dilemma "situation. This conflict of ideas "dilemma" seriously affected the judicial unity, stability and authority, finally can only be unified through the mobilization of political, ideological, to keep the relative stability. This results from the reverse side, also confirmed the necessity of establishing China judicial philosophy.


        (Editor: Chapter Yongle)

    

{1} (Germany) Karl Engis: "an introduction to legal thinking", translated by Zheng Yongliu, Law Press, 2004 edition, page 4.
{2} (Germany) Radbruch: "philosophy", translated by Wang Pu, Law Press, 2005 edition, page 102.
{3} Wu Jingxiong: "beyond East and west", translated by Zhou Weichi, Social Sciences Academic Press, 2002 edition, page 149.
{4} see Donald Black, Sociological J ustice, Oxford University Press, 1989, see also Niklas Luhmann Law p.288., as a Social System, Translated by Klaus A. Ziegert, Oxford University Press, 2008, p.457
{5} Su force although written on the legal activities of "specialization", but he also analyzes the negative effects brought by the specialized. His paper may be the earliest contemporary Chinese discusses judicial specialization negative effect on academic articles, is very deep, very thoughtful, but in practice it is beyond the era background and objective conditions. Therefore, Su Li showed not support occupation and legal activities of the judge's occupation tendency in many occasions. For example, he has been against "demobilized soldiers in the court" in view of the objection, the paper also stressed that China how many outsiders become famous judge. To this, the author analyzed in this paper (see Su Li: "on the legal activities of the specialized Chinese", "social science" in 1994 sixth period).
{6} Zheng Xiaocang: "two ideal" university education, Yang Dongping editor: "university spirit", Cambridge University Press Ltd. published 2001 edition, page 52.
{7} see Li Xueyao: "legal occupation doctrine", China University of Political Science and Law press, 2007 edition, page 6.
{8} Sun Xiaoxia: "skills and ethics" legal family, "law" in 2000 fourth.
{9} (United States) Brian Kennedy: "America legal ethics", translated by Guo Naijia, Taiwan Shang and Zhou published 2005 edition, page 7. Brian Kennedy (Brian Kennedy) is USA California lawyer occupation.
{10} Su force on the one hand, said "we do not experience of legal thinking or thinking, not observe their brain or other organs in the physical or chemical aspects," one said "we just see the legal person's behavior and the behavior shows certain characteristics or pattern" (from Zhu the ninth part). Now that we know he is not thinking of experts or cognitive scientists, we should respect those who we do not understand, shouldn't we cannot see or do not understand things as does not exist, or say something else.
{11} Kennedy, see above note (9), page 6.
Article {12} the author in more than a decade ago published is in the "legal thinking", aims at explaining the legal persons or legal home there is a different from other industries (the occupation and occupation) way of thinking, is not "legal methods", but also because of considering this point (see Sun Xiaoxia, see above note (8)).
{13} (Germany) Radbruch: "a set of legal wisdom", translated by Shu Guoying, Chinese legal publishing house. 2001, page 137.
{14}Edward H. Levi, "An Introduction to Legal Reasoning", 15 Chi. L. Rev, 501503 (1948). Quoted from (the) Ruggero Adise: "legal logic", Xin Wei of the Tang Dynasty, Taiwan Fortress Press, 49.
{15} (Germany) Karl Larenz: "the methodology of jurisprudence", translated by Chen Aie, the commercial press 2004 edition, page 162 - 163.
{16} this case the expansion explained the reasons for analysis, see Liang Huixing: "the referee method", Law Press, 2003 edition, page 103.
{17} "the Supreme People's Court on Zhao Zheng and Yin Fahui's personal injury compensation case applicable legal policy to reply".
{18} Lin laifan: "the bedroom of the constitutional rights -- on Yanan yellow disc case", "law" in 2003 third.
{19} is quoted from (14) on, see note, page 48.
On {20}, see note (14), page 48.
{21} Wang Zejian: "the legal thinking and the civil case", China University of Political Science and Law press, 2001 edition, page 20.
{22} Wang Boqi: "the concept of law", "social science" in 1960 July.
{23} sometimes law students will have a doubt: the prosecutor before judge no decision on the prosecution, the others without trial found guilty of thinking, Is it right? Violates the principle of presumption of innocence? In fact, if this problem from the prosecutor's Ethics Perspective (such as "obligation" or "quasi judicial"), can be smoothly done or easily solved. (see (day) Mori Yasuyu: "judicial ethics", Yu Xiaoqi and Shen Jun, the commercial press 2010 edition, page 176).
{24} see Larenz, see above note (15).
{25} Engisch, see note (1).
{26} see Wang Zejian, see above note (21).
{27} Huang Maorong: "law and modern civil law", law department of National Taiwan University in 2006 edition editorial committee.
{28} Zhang Wenxian: "research" trend of thought science twentieth Century western philosophy, Law Press, 1996 edition, page 447 - 464
{29} Su force given in the citizen to purchase conditions and false divorce, is because the purchase of personal interests, to the analysis of law, all within the scope of the rules in their own right, not because he has mastered the law thinking and method of legal person.
{30} Radbruch, see above note (2), page 102.
{31} Shu Guoying: "philosophical meditations", Peking University press, 2010 edition, page 37 - 41.
{32} Ladd Bruch said "purposiveness" legal person and laymen alike, and the stability of law and the justice of law is the legal person and laymen have different (see Radbruch, see above note (2), page 102).
{33} see the Beijing City Intermediate People's court "Tian Yong vs. University of Science and Technology Beijing case judgment", "Gazette of the Supreme People's court" in 1999 fourth.
{34} part can see sina.com.cn News Center: "Hangzhou drag racing crash dead case", http://news.sina.com.cn/z/fjzbc/index.shtml, last access date: October 21, 2013.
{35} Kirk said: "according to the lawsuit is not natural reason (Natural reason) to make decisions, but by human reason (artificial reason) and the legal judgment of decision; law is an art, a person only through a long period of study and practice to get knowledge of it". (United States) Edward S. Calvin mateer: "American constitution" higher law "background", the translation, life, study, New York 1996 edition, page 35.
{36} Sun Xiaoxia: "detective opinion, theme and symmetry of information", "Chinese law" in 2010 third.
{37} Engisch, see note (1), page 7.
{38} Zhang Weiying: "Wu Ying case is back reform, illegal fund-raising is evil", http://www.cs.com.cn/xwzx/03/201202/1:20120205 3228883.html, last access date: October 21, 2013.
{39} Ladd Bruch, see above note (13), 20, 130 pages.
{40} Edward · H. levy: "an introduction to legal reasoning", the solemn translation, China University of Political Science and Law Press 2002 edition, page 16 - 36.
{41} has an ostrich from Africa brought back a two foot, causing damage to others, the victim will all ostrich to court, claim damages. But the law only provides, the damage caused by the four legged animal, all the animal with the victim compensation, so controversial.
{42} Engis, see above note (1), 181 pages.
On {43}, see note (14), pp. 133 - 136.
{44} (United States) Cardoso: "nature" of the judicial process, Su Li translation press, 1998 edition, page 8.
{45} Huang Maorong, see above note (27), page 735.
{46} Engis, see above note (1), page 192.
{47} (Germany) H coing: "philosophy", translated by Lin Rongyuan, the Chinese press, 2002 edition, page 223.
{48} Larenz, see above note (15), page 20.
{49} here refer to the following documents: Wang Zejian, see above note (21), page 220; Huang Maorong, see above note (27); Liang Huixing: "the hermeneutics of civil law", China University of Political Science and Law press, 1995 edition, page 213; Yang Renshou: "the methodology of jurisprudence", China University of Political Science and Law press, 1999 edition, page 101; Liang Huixing, see above note (16), page 76; Zheng Yongliu: "legal method of ladder", Peking University press, 2008 edition, page 141.
{50} Yang Renshou, see note, page 135.
{51} here refer to the following documents: Liang Huixing, see above note (49), page 213; Yang Renshou, see above note (49), page 101; Liang Huixing, see above note (16), page 76; Zheng Yongliu, see above note (49), page 141.
{52} Engis, see above note (1), pp. 174 - 176.
{53} Larenz, see above note (15), page 246.
{54} Larenz, see above note (15), page 246.
{55} Cardoso, see above note (44), page 82.
{56} "Li Maorun v. public security administrative nonfeasance case", see http://law.china.cn/features/2006 - 12/28/content 2956104.htm, the last access date: October 21, 2013.
{57} "the Supreme People's Court on the public security organs do not perform their statutory duties should take the responsibility of administrative compensation replied".
{58} professor Guo Daohui summarizes the function and significance of contemporary China jurisprudence in the "positioning and mission" jurisprudence, including "through shelter, emancipating the mind, establish the law law enlightenment values and selection criteria, legal thinking method of penetration" function and significance (see Guo Daohui: "orientation and mission of jurisprudence" "," Journal of Shanghai Normal University (PHILOSOPHY AND SOCIAL SCIENCE EDITION) 2007 sixth).
{59} Larry Alexander, Emily Sherwin, Demystifying Legal Reasoning, Cambridge University Press, 2008
{60}John Dewey, "Logical Method and Law", Cornell Law Quarterly, 1925
{61} Ladd Bruch, see above note (2), page 73.
{62} ibid., P. 74.
{63} "the Analects of Confucius" constitutional question.
{64} Radbruch, see above note (13), page 132.
{65} we recently advocated "in the political life of leading cadres to improve the rule of law and the rule of law by the thinking way of deepening the reform, promoting development, resolve conflicts, maintain stability", it is proposed in the "legal thinking" meaning and function. We can also say that, through the legal thinking governing empirical example, in some countries have already practiced.
{66} (United States) Posner: "above the law", Su Li translation, China University of Political Science and Law press, 2001 edition, page 65, 67.
{67} ibid., P. 81.
{68} ibid., P. 67.
{69} "in law and Analysis on the occupation activity to wisdom.". Ibid., P. 65 - 67.
{70}. Note, page 65, 67.
{71} "legal occupation training and background are more diversified, the less likely to reach a consensus on important issues". Ibid., P. 67.
{72} but Posner did not acknowledge the legal occupation, already appeared to signal non occupation development. Ibid., P. 74.
{73} Wu Jingxiong Holmes evaluation, compare it with Shakespeare, he said that "like Shakespeare, Holmes is one of the world's philosophical thinking, the universe is infinite for him,...... They found a profound meaning in common, in the seemingly solemn found in common; they split so deep, so that uniform....... They are so original......" (see Wu Jingxiong, see above note (3), page 145).
{74} Posner, see above note (66), page 127.
{75} Larenz, see above note (15), page 77.
{76} Posner, see above note (66), page 230.
{77} see Donald Black, Supra note 4, at 288 and Luhmann to Black's point of view organized into form, see Niklas Luhmann, Supra note 4, at 457
{78} (United States) Steven J. Burton: "Introduction" of law and legal reasoning, Zhang Zhiming, solution Xingquan translation, China University of Political Science and Law press, 1998 edition, page 99 - 100.
{79} see (United States) Ronald Dworkin: "our judges must become a philosopher? They can become a philosopher?" Fu Yugang, Zhou Zhuohua, Zaixu Akijun, editor in chief: "Tsinghua law" (the fifth series: "the legal thought and the social context" of special issue), Tsinghua University press 2005 edition, page 38.
{80} Radbruch, see above note (2), page 102.
{81} Ji Weidong in this article on the two element thinking mode for detailed combing (see Ji Weidong: "the construction of rule of law", China University of Political Science and Law press, 1999 edition, page 90 - 92).
{82} Yan Juean: "see the specification, reasoning and action: the epistemology of law in Taiwan", according to Yuan publishing company, 2004 edition, page 9 - 17.
{83} Sun Xiaoxia: "the industry law", "law" in 2013 first China.
{84} Ji Weidong therefore concludes four kinds: one is through the experience and strengthen scientific examination, two is the judgment of scientific reasoning and exchange calculated by various value (such as "theory of interests balancing"), three from the German "Law Hermeneutics", four is the main body and the main body of the Constant dripping wears away a stone. "bargaining position" (see Ji Weidong, see above note (81), pp. 97 - 100).
{85} Cardoso, see above note (44), page 103.
{86} see Cardoso, see above note (44), the translator's preface, page 4.
{87} Posner, see above note (66), pp. 140 - 141.
{88} Sun Xiaoxia, see above note (83).