This is the Tianyuan University Law School professor Su Li latest paper, published in the "Harvard Law Review". "Think" like a legal person that is probably every law school graduates have heard of a saying, the so-called "legal person" impression even in society is fixed, for example say (satire?) The logical, wording. So, there is such thing as "legal thinking"? From "legal system and its local resources", Professor Su Li on Chinese jurisprudence various popular mode of thinking in the continuous reflection, this time Professor Su Li will draw what conclusions? Unlike with the analysis of the concept of thesis, Professor Su Li's style of writing is vivid, the analysis to the recent years from several major cases, the people pay attention to the event are the sharp. The following is the text:

Sow dragon seeds, harvesting fleas.

-- Henie [1]

Define a problem

"Thinking like (a) the legal person as" (Thinking like a lawyer) the legal education USA said, 1990 years into the Chinese, [2] along with the social transformation, gradually popular. But then he changed to ", then everything changed, changed completely, a miserable (terrible) of beauty is born". [3] is paradoxically, it is advocated "with international standards" will be the legal localization, became a Yao contemporary China law (thorn?) Eye scenery line.

This paper is going to clean up the scenery.

The first is in the Anglo American law and legal education in the context of the specific understanding "as a legal person that thinking" what is said; secondly, the focus of this paper, to "destroy" approach, the criticism of contemporary China law of a proposition of "China manufacturing based on a misunderstanding of the law thinking" and the preliminary discuss, what are the potential intellectual, social and interests of extrusion and collision, created the change. I will pay special attention to this proposition in contemporary society for legal person of this new interest group of the special function.

The paper is structured as follows. To USA the judicial practice of the first amendment to the constitution of the freedom of expression is defined as an example, the next section, I briefly introduce "thinking like a lawyer" why did it happen in the American law school; what this is for, is the main piece of law school has the ability to impart a unique and unified and enough prideful legal thinking? The third section reviews and analysis of contemporary China law how hypocritical, take the words too literally, will it have what misunderstanding into law a unique thinking.

But misunderstandings in cross-cultural does not necessarily bad; can accomplish great creation -- Montesquieu misunderstandings about British separation of the three powers is one of example. Therefore, it is necessary to section five, text to criticize the "legal thinking" is not established. The fourth section analysis at the level of general experience why can not many generalization about legal thinking characteristics or model establishment. The fifth section analyzes the role of different system of judges, prosecutors, lawyers and legal person to make them even in the same case or incident also behavior is different, so the legal person does not have a unified thinking mode.

Of course, people are very concerned about the legal consequences of legal practice, and in the range of permission system in pursuit of the most advantageous and reasonable consequences, but it does not constitute a legal person's thinking, the sixth section argues, every business people, even the more used, almost interchangeable with the ordinary people, the so-called "legal" (hereafter in this paper are no longer in quotes), also mostly behavior or thinking so. Although the system role, legal person's occupation interest, social expectation and self expectation, and long steeped in the legal profession, may make them often than ordinary people on questions of law is more sensitive, more detailed, more cautious words, expression is more careful, but, the seventh section analyzes the argument, the role of shaping the legal system radical rhetoric and its critical of light, and used in the position than proof function using the language, thus, significantly different behavior does not support law thinking assertion. The eighth section further examples from both sides of the argument on the words and deeds of thoughtful, prudent, cautious people do not lose to some legal person, and graduation, worked at the school of law, a law degree or professor title, once in the professional occupation and control of the state, the mind will not prudent, judgment is not responsible for, and even paranoid and ideological supremacy.

But this will leave a question, why "legal thinking" such a "Huyou" proposition in and can be popular in the law circle, from accidental misreading the truth, have what special means it in Chinese propagation and localization in the process? Or there is a long-standing social function? And what function? This is the Ninth Section concerns.

The tenth section back to the Chinese law education. Deconstruction of "legal thinking" do not deny that the interpretation of the text, doctrine, "kouziyan" and legal reasoning and other professional skills training. This is still essential, irreplaceable. But these education and training helps only the legal person with a variety of words all essential judgment packing up, Chen Cang dark, even in the literal up laws and legal decisions, but not good judgment in law in the face of unconventional case when necessary. "And the world more value judgment," [4] correct judgment need to wise to effectively deal with all kinds of information, can effectively predict and control the consequences, which requires knowledge about the real world more, law school education should be integrated into the ability to use more social scientific knowledge. Conclusion there are several points.

Two, "like a legal way of thinking"!

"Thinking" as a legal person that is embedded in the Anglo American law and USA traditional legal education in a proposition. [5] its intention is never said, nor does it mean that, the legal person has what the one and only thinking, thinking characteristics or way of thinking, is only for the first grade students of law school, hope they get familiar with the basic system of environmental law and some basic analysis of the reasoning skills. [6] this proposition, especially for the experience of history of the common law formed or non logical features, the judge made law tradition, law student to avoid the requirements from the conventional definition, logical deduction or theory to understand the concept of law, the term, proposition, doctrine and system and so on, and must be entered by a seemingly abrupt judicial case history, in which the understanding of judge of legal words, concepts, doctrine and rules of practice to define, understand these concepts, doctrine and shaping the system boundary and the rheological and be a distorted political and social forces, to understand the legal consequences, and found that the elastic space legal word, proposition, doctrine, rules and regulations may stay in familiar with the process of. Simply to say is, don't care much about the word logical conclusion or inference (i.e. contemporary China law called "legal consequences"), but should be concerned about words in the social practice is the consequences (the Chinese now called "social consequences" and "political consequences").

Although the example is very easy to Overgeneralization, and different people will have different generalization, I intend to America First Amendment to the constitution of the "freedom of expression" case as an example to illustrate this proposition.

Although the first amendment was enacted in 1790, thousands of customers, but USA case the Supreme Court first trial about freedom of expression "" (Schenck) is 120 years later in 1919. [7] in the case, judge Holmes first assertion, freedom of expression is not absolute, the most stringent protection of free speech would not protect in a crowded theater shouting "fire". But how to distinguish between protected and unprotected speech? He thought about freedom of expression, in each case, judicial concern should be the "nature" of the use of language environment and the use of whether there is a "dangerous" clear and immediate cause "substantive (or major) of evil", the evil is the Congress has the power to prevent.

I can totally accept the verdict of thousands of customer case, also accepted the Holmes free speech is not absolute assertion; but when I returned USA initial contact with this case, doesn't really understand Holmes's opinion, I follow is to focus on the word of a China law school graduates develop habits: here the controversy of whether speech or expression? If so, it belongs to the first amendment freedom of expression; and then take the speech quality, and can easily be a bad moral judgment instead of "there is no clear and present danger caused substantial damage" such an experience judgment. After the years, I re read the verdict, truly understand, Holmes advocated and my habits vary widely, in freedom of speech in the case, he believes that the judges do not have 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 this can be called "social action" can lead to what consequences, much, much risk and risk when it happened. [8]

But the initial understanding of my soon in other cases challenged. The first is obscene pornographic publications are subject to the protection of freedom of expression? Although the magazine, or books, but this is clearly not at that time, I personally think that the expression of special worthy of protection, such as political or literary arts or science and technology expression. Also, there are other problems, obscenity, pornography is the expression of who, who is in the expression? If is conveyed in the picture of a nude, perhaps also said in the past, but the photographer photography, artist, has barely expressed their "art", but the publisher or printing plant printed this book and magazine is "expression"? Binding is expressed or issue? Or is this freedom of expression to protect (in fact I secretly replacement for "I think worthy of protection") expression? Then, in another case, the lawyer advertising, has also been American supreme court thought to belong to the category of free speech, protected by the first amendment. [9]

Due to the exam, I hope my answer in accordance with the judicial sense "correct", is in the same America judicial system tightly linked to USA law education environment, must I give up my understanding of freedom of speech, and adopted the American judicial theory the understanding of freedom, to say that, expression not only we usually think of important and valuable expression, but also we may think is not very valuable (advertising), and even some people think that there is no value (soft porn) works.

But this understanding is not enough, in some cases the next let I found, an expression is classified as subject to the protection of freedom of expression and speech, in fact, "expression" basic didn't what association. For example, if only to see the expression, then regardless of "soft porn" (in simple terms, is "not dew point") or "hard porn" (roughly the equivalent of "dew point", or particularly children) should be expressed, but the former is protected, while the latter is not affected by. If some pornography may have artistic value, thus protected; but on the other hand, "dew point" and artistic value is -- sculptures in ancient Greece are dew point, and on the other hand, even if senior art not pornographic meaning, because whether sex not only related to the environment, and [10] viewer the age and interest. [11]

After that, the Supreme Court has ruled that America freedom of speech, including political campaign contributions to the free, restrictions on political donations law restricting the people with political donations form of political freedom of expression. Some cases of [12] 1930-40 during establishment, the workers on strike picket, the court considered "speech act", the protection of freedom of expression. [13] in 1989 and 1990 two cases, America Federal Supreme Court decision, burning of the flag is a "symbolic speech", [14] therefore, as long as the flag is burning their own buy, it should not be banned, or a violation of the first amendment to the constitution of the expression USA self by clause. It looks at first should be action?! And the so-called "symbolic speech", if it is not say it is not (usually understand) speech?! Otherwise, what are not speech?!

After thinking, just make me understand, although the law is the freedom of expression, but in American, a speech or an action is regarded as expression and protected in law, the key is that it is not the conventional sense of freedom of speech or action, but in its social consequences, whether major injury obviously, immediate cause. Any speech or action, as long as not may lead to satisfy these three conditions of damage, will be assumed to transfer some social value of information, will be regarded as expression and giving constitutional protection; if the major risk obviously, then, even if is the most typical, the most common words, but also from the protection freedom of speech. In other words, in the law, whether a behavior belongs to the category of free speech, in fact, and whether speech or expression basically has nothing to do, and its social consequences directly related to.

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.

While the legal person is the action in the legal system, in addition to the conventional case follow the first exception, they are the most important point is that the judge will how to understand and make the judgment; they will but not in accordance with the conventional meaning of legal text simple deductive logic results, more and more crucial is to imagine so or so decides the social consequences. They assess the direct and indirect social consequences, comprehensive balance, balance, choice or limited, and some key words in some way the desirable consequences as legal or in the precedent hook up. The above said that the "expression", the other words as well as the law of meaning, therefore, all the courts and judges based on national power and the existence of a non logical social legal construction.

Therefore, I didn't really understand Holmes talking about the common law said, "the life of law is not logic, the law of life experience". [15] "like a legal way of thinking" is embedded in the tradition of common law, law school education and the countries of Anglo American law occupation oriented and can not be divided. [16]

Three, how to become "legal thinking"?

This block has a profound cultural tradition background proposition, with the need of reform and opening up, the construction of legal system of China, from the beginning of the 1990's, the transformation Chinese law education must, through some familiar America law school scholars, first entered the China law education, [17] aims to create the Chinese was neither theory nor the practice of legal education support to occupation orientation and so can we really have the legal education of academic. This effort can say fruitful, Chinese legal education has made great changes in the past 20 years, the most notable is, since 1995, the national legal departments launched a legal professional master education.

But the education of law and American of totally different backgrounds, in the 1990's, Chinese are hardly have an accumulated mature legal occupation occupation of a lot of experience and skills. Most judges, prosecutors did not is the ideal of "legal person", most of them didn't even have the chance to go to university, [18] has quite a part is entered after twenty-first Century it in various ways in learning the law specialist or undergraduate education. Also some people want to establish the legal person of the community, [19] but in fact from the discussion about "demobilized soldiers in court", shows that this is an impossible task; although many sincere judge has only recently realized this point. [20] however, hold up, it is not just the judges and prosecutors, even if is the 1990's lawyer, law professor at a few or not, and how many people really have, or really, law degree? [21] even the law origin, then teach the learning and the occupation of the legal person in today's knowledge and skills to also can not miles!

 

 

 

This means that even if someone really wants "think" like a lawyer, in Chinese jurist (later became a "law", then only the boundary is more clearly "law"), but not in the experience level to find a typical "occupation legal person" can be used for comparison or measure standard, but what about "thinking" legal person? -- that's not even the last typical signifier, but only a few words of assembly, is self circulation refers to.

But this is not a problem. As long as the social demand, there is supply; not genuine, it will have, also very easily, fake; and if in this market there has never been, consumers have never seen, genuine, fake also is not a fake, it is difficult to say fake and genuine difference. Legal person one time became the representative of the legal person.

But he did not make come unexpectedly the serious lack of occupation experience of legal person with profound respect and humility, instead enjoy very much, is also very good. One of the most prominent example is, since 1995, demonstration and reasoning interpretation, the relevant laws, the relevant legal dogmatics, translation (including Taiwan authors), published in the rapid growth of the number of mainland; and at least 10 years, not the mainland authors is a relatively long-term engaged in legal practice a gleam of judges, prosecutors or lawyers, not even those who have more experience in lawyer practice law professor, and -- especially -- is often concentrated on early learning and emphasis on legal theory. [22] Book mostly contains what philosophical hermeneutics (or interpretation), interpretation of law, analysis method of various theories, as well as dogmatic, even if some are not really concerned with justice. [23] soon, this also infected with the judges and judicial practice, in addition to writing the same academic books, write [24] court began to emphasize the verdict, [25] is to a considerable extent is the legal reasoning, demonstration and explanation of the judgments of the literal expression.

It was also at this time to construct the relevant laws of thought, accompanied by relevant legal interpretation and legal methodology of interest, is also accompanied by the judicial occupation of the efforts. No law can be the real people, imagine, first with the rational with books on the material in the construction of a typical legal person, the human history will be praise and think that law should have something, whether or not it make sense, can be compatible, in a person Douxiansai into it, put it first up, then the same things out, you can declare understanding and found that more accurately should be invented and created the law of human thinking. [26] or according to the needs of the modern rule of law "" to construct the so-called "legal thinking", and then further functional interpretation of the characteristics of legal thinking, completely regardless of the legal person of the real world is how to thinking. [27] so, in a very difficult to say how the study object of age, no empirical studies related, in just 10 years, from scratch, out of thin air, Chinese published and published papers and books on legal thinking or thinking or thinking a lot. [28] though there is almost a title, but [29] chose this title also shows that authors and publishers are expected to "legal thinking" may attract potential readers eye.

A little thought, people will find that, in the current Chinese context, "legal thinking" is implied or assumed, whether true or:

(1) the legal person and the ordinary people's thinking is different, should also be different;

(2) the legal person form a community, a family resemblance of their thinking, and is different from the common people; [30]

But even regardless of the legal person is really thinking is different from ordinary people, also have a question: why the old yourself out? Not only the common people, business people don't boast thinking characteristic, the mental patient's true features usually always want to deny. People say their own unique legal thinking, it is impossible to just talk, but must be in the "-- the legal thinking seemingly neutral assertion deep in an assertion of power and knowledge, namely (3) the law of human thinking and judgment than ordinary people more good, more correctly, if not directly to the word of truth, the legal person should have a greater voice, should become the opinion leader, not only to shape public policy makers, but also to create private decision makers. [31]

But people may still ask legal thinking from where? So with this assertion is, (4) is the Law School of education and training, rather than legal occupation practice, shaping the law of human thinking. In the eyes of a considerable part of the law, law school education and training is not to practice law, but to learn the ancient discipline, and accumulated a substantial judgment (i.e. legal consequences) abstract theories and skills of independent, argumentation and reasoning, interpretation of law, many legal principles, legal doctrine, this will the legal person is different from ordinary people, so the legal person share mutual recognition, legal person's register profound respect thinking, forming a community of legal persons, but as long as adhere to these teachings, knowledge, principles and beliefs, to realize the rule of law, and have a happy life.

Therefore, even if born out of "thinking like a lawyer", "legal thinking" and its meaning is now completely different from its birth. Not only is the thinking subject into the complex from the individual, from the law school students become legal occupation groups; and it must be embedded in life and occupation context specific and vivid "thinking" is also out of the question and context as stand on one's own entity -- "thinking"; it is no longer the occupation, social life and occupation requirements for practitioners and shape, but the legal person to claim its advantages, unique, closer to the truth (if not equal to the truth) and should be privileged to, that is the shaping of the social life and ordinary people! This is not only a legal person to settle the workplace weapon, this is the law for the people come to dominate the country qualification certificate.

Four, the legal person has a unique way of thinking?

But repeated a thousand times, this is still the myth. Even if there are a lot of Chinese scholars in various ways in general can also say a little shadow, but most of them make groundless accusations -- too, even extreme, exaggerated.

For example, Zheng Chengliang summarized the legal thinking has six characteristics, "as the rights and obligations as the clue", "generality overmatch particularity", "legitimacy than objectivity", "formal rationality is better than the substantial rationality", "procedural problems better than substantive problem", "reason conclusion". [32] similar, Dong Yuting, Yu Yisheng thought that the legal rights and obligations, people focus on priority priority of legality, procedure priority, priority, equal treatment for priority, the five priority "to create the basic characteristics of typical legal thinking". [33] Li Shusen argues that "legal reasoning is mainly in the form of deductive reasoning, the reasoning is always the law", "between the truth and legal reality, legal person respected legal truth", and "between substantial justice and procedural justice, legal advocates a more procedural justice" etc.. [34]

They are also generally not enough. The law thinking, in view of these scholars, there are parts of two professed, one is to respect the established legal norms and institutions, such as the (legal) rights and obligations, legitimacy, (legal) program and the resulting form rationality, the other is emphasized strict careful abide by justice process logic and program requirements to reasoning, argumentation and interpretation; and a part of the law is not clear, people only think of and comply with these priorities, cannot consider should not consider doing so in the real world consequences.

This last point is at best in ambiguous cases or events can be used as an argument, is not universal, not seriously. If all the reckless, that even the rule of law? We don't choose the rule of law is based on the consideration of the consequences? But if upholding the rule of law will result in a catastrophe, then to amend the law, the constitution, and even unconstitutional, because the constitution "is not Dutch act contract". [35] never give urine Biesi living.

In particular, even some judges look completely is strictly according to law, precedent, do not go beyond the prescribed limit step, without considering the consequences of any judicial decision. In fact, Posner has repeatedly analysis showed that, [36] and other scholars have pointed out, this is not because the judge did not consider the consequences, but because the doctrine of pragmatism and judges consider the consequences. For the vast majority of the judges, especially those who are not the final say even if the judge, the law and judgment are their most reliable, most practical tools, not only can save labor, improve work efficiency, but also can avoid the social and academic criticism of our law judge Initiative (judicial activism); even some laws don't look right, the judge, it shall decide to the legislature, and not by the judge for others is not good at legislation, robbed the legislators.

But the two part, also is not a kind of thinking and thinking characteristics. First of all, this is just some of the legal thinking, imagination and requirements, but no empirical evidence to support the legal person is thinking. Scholars can of course of legal person's thinking high standards and strict requirements, but the problem is, legal person is so thinking (in fact, decision and action), does not depend on the standard and how high requirements more strict, but depends on the institutional constraints. Therefore, even if the legal person has these characteristics, it is not thinking, but their behavior!

Since in the legal profession, legal person must abide by this line of the rules, respect for the law, abide by the rules and procedures, license or ID does not comply with the legal person will lose, became blind, but this and thinking "features" or "mode"? But also pay attention to the cost and benefit is the thinking characteristics of Economics -- Based on the economics principle, everyone equally, but has its own ways to focus on cost income? While the teacher this occupation has the characteristics of thinking yourself -- be good at giving systematic guidance, be tireless in teaching others, teach students in accordance with their aptitude? If this logic can be established, then what is Professor of law and professor of economics thinking? Pay attention to the rights and obligations of be good at giving systematic guidance? Or pay attention to the cost and benefit of the be tireless in teaching others?

Thinking, reasoning and argumentation rigorous or careful, can be said to reflect the "thinking", the legal person of outstanding usually. But this still is unlikely to be the thinking characteristics of legal person is unique, because no matter where a line, to do, this is a "must". Not only the great natural and social scientists, even in those who do not too great writers, artists also has a large number of examples, consider carefully consider "Jia Dao". Never thought, artistic imagination and exaggeration are not careful thinking occurs. With what, rigorous and meticulous suddenly you are legal monopoly? This kind of view [37] too easy to let people doubt the legal thinking people really careful rigorous or, worse, don't, someday, "Huyou" into thinking Chinese legal person in the eyes of ordinary people!

Careful sun Xiaoxia perceive, not "thinking features of law" is the practice of law. Therefore, his attention and efforts to generalize the thinking process of the legal person, the contents or materials instead of their thinking, obtained five points: the use of the term of observation, thinking and judgment; think through the program, follow the "habits of thinking to look at the past"; logical and careful, cautious, reason and emotion; the program in the relative "true", unlike "true"; scientific judgment either this or that, unlike politicians like to engage in "trade-off" etc.. [38]

But these generalizations are 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. "In terms of" that can not be understood, even make people doubt whether this observation is also observed, or just First impressions are strongest in terms to generalize the observed phenomena "; and in terms of judgment" is also very reluctantly, judge, important is accurate and correct, whether the term is not important. I estimate that the authors really want to say is "observation and judgment in terms of the law to the expression of legal person". This is of course the establishment of legal profession, but not such, what occupation and professional business so it -- as long as it has the professional terminology? Now what can be called the work without professional term -- think now Taobao popular online is very easy to be not Taobao Title: "dear mistake".

As for the "thinking" through the program is unintelligible. If the thinker to respect the relevant procedural requirements, but this is not legal, professional research / any discipline thinking there must be in compliance with the discipline required procedures. Do not think that people don't talk about it, there is no program. In the natural and social science research, this program requires not only many, and very strict -- not strictly will soon make. Even in the traditional humanities, it is difficult to generalize some accepted thinking process, also really a move in and out with wizardly elusiveness thinking, but it is very difficult to describe does not mean here thinking does not follow a procedure. Consider the Cartesian make for the origin the pursuit of philosophy thinking hard, step by step has been traced back to the "I think therefore I am".

I understand "to look at the past" refers to the concept of precedent, but the author want to avoid this in Anglo American law, in order to highlight this is not limited to the general thinking feature of Anglo American legal person. This can be seen in the fine; but fine error or error, because to look at the past generally follow the precedent is not accurate. First of all, respect for precedent actual political function is always facing the future (the exact expression is, after the precedent), in order to maintain the stability and authority of law. But not only that, the famous thesis East judge Brook had also has analyzed why judicial and legal person can and must be "forward looking". [39]

Careful thinking, but in front of the analysis, here also say a few more words, careful is always relative, not absolute; the actual needs and meticulous degree will be subject to the law, so the criminal conviction USA criterion is that "there is no reasonable doubt", instead of "no doubt", Chinese the traditional standard of conviction is "irrefutable" rather than "steel card such as taihang". Therefore, the law of careful sometimes it includes and the pursuit of ambiguity, this is "woolly headed" smart. As everyone knows, such as Sino US Joint Communique "in Shanghai", the United States on a Chinese famous express [40]; the very careful to express so ready to accept either course! But only to ready to accept either course so precise expression was all flatly position, to avoid their political embarrassment and both sides may fall into a political stalemate, but also for the future of bilateral relations and even later (!) Changes create enough space! But only say careful treatment of emotion and reason, this is what also didn't say; because each discipline, depending on the characteristics of the subjects, will be to their appropriate caution emotion; therefore the "prudent" in practice, for different disciplines, respectively is attention, neglect, neglect and disregard.

The so-called for program of truth, not for scientific truth, experience is not set up. First of all, don't think that only the law that program, the scientific truth must also follow the program, scientific research must be programmed, the operation, there is no "I" for. Secondly, the author seems to be misunderstood in science "really", or stay in the university philosophy repeated Lenin in short of "truth", defined, objective existence independent of human. But the scientific research on the "real" definition already changed; based on Popper and Kuhn's scientific philosophy, scientific "truth" is never absolute, but is currently the most explanatory theories and hypotheses. [41] Copernicus said that the heart of the "true" depends on what you take for reference; based on the rotation of the earth, we have every reason to, and in some studies even if convenience can only set the universe is around the earth. Because of unable to repeat the experiment verification, astronomy on the big bang theory or biological theory of evolution are very difficult to use the traditional "really" evaluation.

But the judgment (expression) often need to be accurate, may include not ready to accept either course. But this first does not exclude accurately judge itself is carefully weighing the results -- think of Marbury v. Madison decision; second does not rule out is the pursuit of accurate ready to accept either course, to recall the previously mentioned "Shanghai Communique" in the famous both clear and ready to accept either course expression!

Five, still thinking of family resemblance?

"Legal thinking" implicit is the law of human thinking highly unified or at least a family resemblance, but in real life, in the judicial experience level, this may not be true. Because each legal person has the system role himself, bear the responsibility system of concrete, faced with a specific but detailed system requirements. Therefore the law school will require "like (a) the legal person that thinking", it is implied a variety of legal thinking, legal person and not what the essence of thinking.

"Don't think about, you see," [42] as long as we observe a criminal proceeding can see the difference between different legal person. Look at the prosecutor. Although some scholars said that the "legal person is in the habit of innocence inference or no illegal reasoning", [43], but it can be presumed, charges in the burning of the flag in the case, America prosecutors must first that flag burning is a behavior, not speech, even if the behavior is also beyond the protection of the constitution, therefore does not belong to the category of free speech; and must first be recognized controversial pornography is obscene publications, not subject to the protection of freedom of expression of speech. This is of course the reasoning, but this reasoning is established, almost as bachelors are unmarried men, because, if the prosecutor cannot predict the two kinds of behavior is not affected by America constitutional protection of freedom of expression, even if it is not sure, he will not bring charges, so that the case will not go the court.

Prosecutors believe that legal thinking and analysis of their own right, not that he will win in court, not to show his legal thinking, reasoning and judgment will be the judge; but there is another possibility, is entirely possible, the criminal charges on behalf of the government prosecutor, I don't believe that their own judgments, even he himself may think that these two actions may be protected USA constitutional freedom of speech, but he is not, at least not prosecute all in the expression of his legal thoughts of the two events and judgment, he just represent the prosecution of the two cases pre sentence, represents the views of the government, he must fully and with certainty in the court and analyses, protect flag burning or obscene publications without American constitutional freedom of speech. And so, his thinking and therefore does not necessarily represent as a legal person of his personal thinking, but on behalf of the legal thinking of this institution, his judgment is not entirely his own judgment, but the national agency's judgment, is his understanding and his prosecution understand legislators judgment -- even his understanding error.

For these same two cases, lawyers first judgment (please note that here the "set after the first trial,"!) , and then his opinion and argument, in essence the rational level, will be completely contrary to the prosecutor. But this is not surprising, because if the lawyer with prosecutors from the beginning of the judgment and demonstration, it or he wouldn't agents in this two case; and as long as his agent, no matter what the purpose, the pursuit of justice or "money from", he of the two cases, thinking, reasoning and judgment and the proof must be contrary to the prosecutor. Otherwise, there is no case can be debated, there is no legal affairs need agent.

Similarly, the lawyer, the judge thinking and reasoning, also does not represent, to a large extent even may not represent himself the "real" judgment, thinking and analysis (but the "real" means what?) Representative, perhaps even to a greater extent only him on whether acting in the case judgement (this judgment "real"? Here's the real is what mean?) But this has nothing to do, because, overall, this decision in general is his occupation, even if there are his major economic benefits, this is his role in shaping system and occupation on the environment for the survival of his judgment.

Note that, in the real justice, lawyers and prosecutors thinking is a kind of let people pay attention to the experience of law must look very strange and amazing thinking. Strange is, this judgment is not thinking of research conclusions, but the premise of this research and the ponder, the initial judgment will guide lawyers or prosecutors to a large extent, although he / she may not be consciously, then thinking; therefore, this thinking process is completely contrary to the leading Chinese scholar general "legal thinking" ideal characteristics -- both formal rationality is better than that of substantive rationality or reason, conclusion.

And so, what we see here, on the one hand prosecutors and defense lawyers thinking, analysis and judgment, substantial completely opposite; on the other hand, they share a judgment before the argument to a considerable extent, the conclusion before the reason this completely violate the law people thinking way of thinking or characteristic. Therefore, the problem is, they share or not to share the legal person's thinking?

Cutting the judge in the case also very offbeat, and a class of. He or she does not have to accept both the prosecutor and defense attorney's judgment, no matter how their eloquence, thinking how careful, how strict logic, what law or precedent or academic support -- and not pure thinking. A good judge, in a not simple to follow precedent or simple deductive conclusion in accordance with the law in the case, will take into account the relevant legislation, after both sides reason, argument and evidence, the consequences will also consider the case of this or that judgment and long-term consequences of the parties, as well as the social and the consequences of system, the judge, but also as far as possible legal reasons to look it as fully as possible, sometimes with some social or other reasons, such as listing practices of similar cases abroad, to make this case verdict in law seems very solid, so that society as a whole is generally accepted, as far as possible reduce the possibility of social dissent -- they must always weigh the consequences of judgment, and even square accounts in every detail.

Here, judges and prosecutors and defense attorneys thought looks a little different, the judge is not all "set after the first trial", even if there is an initial judgment, the judge also more willing to listen to the opposite opinion, willing to change or modify their pre judgment; in this regard, can be said to the judge in accordance with the law of human thinking, reason before the conclusion, form reason precedes essence reason.

But this conclusion still doesn't seem so solid, first, the judge to predict still. Second, the judges are willing to listen to different opinions, modify their pre sentence, or because their institutional roles, rules require them after listen to and examine the evidence on both sides and argumentation make prudent judgment. Still not their legal thinking characteristics to promote them to such thinking, but the system demands they even make them so thinking. Third, therefore, such thinking, behavior and judge the most is also beneficial to the judge's occupation interest.

If you continue to seriously, think, and even judges concern and thinking is not the same. Not only have many research pointed out that judicial behavior of common law and civil law judge, and -- assuming thought guiding behavior -- so that their thinking is different; [44] and Anglo American countries, the judge acknowledged, and the system is so ask them, even if the same is the judge, judge of appeal and the court of final appeal legal thinking and consider there are many and important difference. Generally speaking, to solve the primary or the trial court judges are usually more concerned about the dispute, pay attention to the matter of fact, pay attention to settle disputes, focus on compliance with laws and precedents, and appellate judges more attention to governance of legal rules, [45] can be explained or occasionally create laws to promote the unification of the law; and the supreme court attention, often is obviously political issues, so in the world, but America most, so in a considerable degree is a political court. [46] in addition, thinking the outstanding judges and judges are not the same. [47]

The analysis thus shows that, with a legal person, the thinking is not the same, there is no single legal person and unified thinking. But attention should not be legal person should be like what, but he / she sits or stands in what position? Conductor head butt, as long as not too, not heresy, aren't funny, this just shows the role to a certain extent, will affect the law of human thinking, the problem is clear what is the specific role of a legal person? Its responsibilities and occupation interest what was required of him. This is Chinese said "in the political arena, involuntarily".

"Where there is people.", [48] even academia, the imagination of the ivory tower and free academic hall, it is the rivers and lakes, even if not directly involved in the judicial system, there is no role of law, there is still a involuntarily. This is not to say that the mouth shouting independence but for a variety of interests and consciously attached to the court, lawyers or occasionally prosecutor groups, legal person or the parties in the case of,, I mean, that are independent of the judicial practice of occupation groups, even never took legal advice and demonstration of the lofty the legal person, the legal person of a one-track mind to study knowledge, is no exception. Although there is no direct economic benefit agent (lawyer), not on behalf of the state prosecution active occupation interest, nor even judges the implicit justice as the last line of defense on behalf of the state of the case, and often make prudent and conservative ruling such occupation interest, but because of the special social position of legal person the characteristics and requirements of their occupation, occupation, as well as their self - expectation, behavior and thinking, analysis and judgment of their will, at least sometimes, show some distinctive features.

At least in the China now, so painstaking to law science and people generally do not care about the case, do not care about the general case, only care about it more or less a legal dispute not general, but once the care, general care and not limited to the case, and will strive to own care not general: that does not care about the case how to solve the case, more concerned about the proposed previously rare problem solving the case, what are the relevant legislative or judicial information, what scholars directly or indirectly or implicitly discussed the implicit problem, abroad have no similar discussion, therefore they are concerned about the general problems hidden in concrete cases, sometimes may also have all the issues related to all systems discussed again and the case, and more attention from academic level, so eventually they care often also really do not in general. So they don't really care about how to solve the actual, concern is the case in his / her theory in the world should be how to solve, therefore, even if the social consensus judicial decisions, they might also egg inside the bones, put forward various seems to have no alternative necessary, demonstrates why this in their view is a better alternative. They make full use of their intelligence, often make some other occupation legal person (especially a judge) think law "too not pragmatic", sometimes it is "rain hit the child, is idle idle". [49] but whether like it or not, this is not legal person really characteristics or wrong thinking these, the only occupation legal requirements of academic and responsibility, but also their requirements for self, can say, this is a kind of "occupation disease legal forms in the occupation position".

Description and analysis of the above are still not complete, because I didn't analyze legislators such legal person, especially as lawmakers politicians, such as the "Shanghai Communique" (an important legal documents) signatories Zhou Enlai and Nixon as well as their assistant, you always not just because they are politicians. Legal person share, not the so-called thinking, they were sent from the legal right -- at least Nixon has been a lawyer!! But the analysis I can set up or you can accept it and whether a comprehensive and complete is not equal. If roughly established and accepted, then, I can conclude that, even in the real world, in order to some convenient, can put the judges, lawyers, prosecutors, legal scholars and is not discussed here such as lawmakers politician / legal person is classified as a class, called legal person, but the classification of social occupation does not mean an occupation there will produce a highly homogeneous unified, thinking, after all, our classification system is not in accordance with the thinking of.

Six, but with the legal thinking and family resemblance!

An argument is pragmatic, rigorous legal person, not empty talk, in order to solve this problem, based on the role of its own system of occupation and settle problems, highly concerned follow and do not follow the related legal consequences; some people say that this is the law of human thinking.

But such a generalization will also have a few questions. First, it shows that the law of human thinking is the purpose and result oriented, and certainly not lawful priority priority, reason, procedure justice priority, form rationality first -- unless in a legal case the legitimacy, reason, procedure justice, formal rationality as its purpose or the pursuit of the inclusive and coincidence or consistent.

Second, this is still the behavior, and not necessarily thinking. In other words, with these features, you can say it shows that their legal consciousness is strong, but can not say this is because of their strong sense of the rule of law, because it is directly related to their own occupation interest.

Therefore, third, if we admit that this is the thinking characteristics of the legal person, it is disgusting, and a little terrifying, it is likely to undermine the Chinese legal person has been the pursuit of legal person governing ethics foundation. Because it means that, no matter how people desire and requirements, how to well meaning, regardless of what the regulations, if the conditions permit or loses control, the legal thinking will be no principle -- this is reminiscent of the law in question legend "one plus one equals a few" the famous answer, also asked: "you want it to be?" [50] and Mr Li Zhuang Frank: lawyer but is "with the money he misfortunes". [51]

But don't worry. Even so, it still is not "legal thinking", because, in fourth, in varying degrees, we all are not thinking? Thinking this is many people criticize legal -- always more concerned about the consequences, always objective orientation. Think first of all is the economics, has now become the rational person many social science disciplines of assumptions; think of Holmes's "evil" theory; [52] can certainly understand Marx's words, from this point of view: the important thing is not to explain the world, but to change the world. [53] and, just understand all the people including legal person, also need to really understand the legal system, and not overly obsessed with praise and preaching the faith in the rule of law and legal thought.

But even 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. But even in the face of clear rules, people will not only consider the specification requirements, as long as possible or necessary he / she will seek a flexible, this and "you want it to be a" lawyer thinking is the same as the same. At the traffic warning board limit speed of 100 km highway, if no one or no enforcement of traffic prediction, many people will not speeding, speeding mostly also not because of this rule, but often because a novice, not fast or dare not drive fast; even on radar or camera, there will be many driving people buy and orders from the "electronic dog", reduce speed -- but you know only in advance and in that section of the road, but the purchase of "electronic dog", is to know the rules but to break the rules. And if confidence there is good reason to get the traffic police and social recognition or support, such as rescue (especially strange) the lives of others, even if the traffic police enforcement, traffic will guarantee their safety under the speed limit; but in the night, even if the same, and usually there is no traffic police enforcement, many people will reduce speed. In all these cases, the speed limit rule has entered people's vision, all the construction to become one of the core they decided to speed considerations, although not the only. While the law-abiding from the definition on look only, must also be conscious and rational choice, individual initiative, as Wittgenstein analysis, not only because of the rules to defend or Sike, [54] pole or the robot does not acquire praise be or be conscientious and do one's best.

 

Also because of the consequences and concern for the constraint and sensitive, and we can understand, even if not studied law, not graduated from law school, an ordinary person or legal, once in the system, by the system of the role of specific (judges, prosecutors, lawyers, academics, bureaucrats) constraints, as long as not too stupid, can quickly understand and will follow the system of their own requirements. Not only the judge, prosecutor, so, a lot of government official or bureaucrat is so; but at least the civilian population graduated from law school in most countries are not, but they usually obey the rules and regulations, and in their jurisdiction to exercise some judgment or discretion. The modern rule of law has never been a judicial ruling, but the rule of law rules, not the rule, but as Webb said is including legal people of many bureaucratic professionals to ensure regular rule. [55] of course, justice is the last line of defense, that also is only the last, except some legal person has exceeded the wishful thinking take the words too literally, never say this is equal to the justice or the most strong justice line.

It is because of legal and legal person share the characteristics of thinking, we can understand, the human society great judges are not on what the law school, did not receive a legal occupation education, modern instead, in their own and other people's political and legal practice of law gradually shape that future generations of law students efforts to "the legal person as". Both Chinese horse tin five, [56] or America Marshall; [57] both sets the legislation of administrative justice in a Salomon king, [58] or against the king of judicial independence Cook (Coke, the old translation of Kirk) judge, [59] who went to law school? Is not on the political and legal practice self-taught, but from the legal achievement for legal person respected in their traditional?.

Not a slip of the pen, that is political and legal practice! The four judges who did not only the law, on the contrary, have long-term, some (such as Solomon king) or even only, political career. Justice Marshall was in the case of Marbury v. Madison [60] made the great decision, as many studies have repeatedly shown, [61] not because of what Marshall legal person special thinking, to understand more deeply America Constitution -- he just go to take office, his greatest achievement is his long political career, rich political experience training his keen political instincts, so that he can accurately judge their own goals and interests, understand, predict and compare their adopted different measures of consequences, fine sensitive to found and effective use of the system for his space, careful planning the most feasible scheme, and precise execution and completion of the this planning! In fact, the case trial and sentence there are too many aspects does not conform to the legal person of conventional thinking, [62] but it is worthy of the great.

Seven, understand the legal won't listen to reason

But thinking "connected" does not mean that the legal person and the legal problems of judging convergence, as the understanding of the problem to judge law not convergence between.

It must be admitted that, in today's Chinese, at least on the expression of some public media, legal person and blind to many legal events and case opinions often differ greatly, sometimes almost feel irreconcilable hatred for sb., and often make some legal people face are hardly wished to live., sigh China law difficult, then with a sudden Jesus tragic, move on, hope and firmly believe that one day the whole society to share the laws of human thought, the rule of law, and legal person -- if -- long period of stability, the Green brothers words -- to live a happy life.

Faith is not debate. [63] just can't be differences attributed to a lack of legal thinking. The real cause difference is only interests, including the interests of the distribution, but also includes the respective interests of the imagination, the immediate and long-term, physical and emotional. Though the law sincerely boast to defend the interests of vulnerable groups, but in the law service market, have the ability to purchase services or purchase the high-quality service, is always relative has the right to rich and powerful, while the "vulnerable groups" boundary is also very wide, because in the present Chinese government is firmly defined as strong, so long as it does not always stand with the government, may not be the face. However, although the ordinary people, especially in the modern society, are unlikely to leave the law, but in the world, since ancient times, but never trust legal person, nobody took legal person when his brothers. From Platon to the eloquent man (lawyer's predecessor) attention, Shakespeare "the first thing is to get rid of the legal person" all to folk all sorts of such as "one plus one, you hope it is equal to a few" joke, that the marketing strategy, design the perfect legal person is unable to eliminate the distrust of the development of social the class or class distance. Even if the law were more, and indeed there are many good people, but the law can not also good problems will exist forever, can not be eliminated, unfalsifiable. [64] will be divided into legal thinking, or reduced to China law is still not perfect, not intentionally hide legal person and legal conflicts of interest, is the thinking tame interests strength for no reason optimistic.

This is doomed, you scold people not to know good from bad or devoid of gratitude, "legal" and legal person, in general, is not to a pot of urine; but let many "legal" seemingly won't listen to reason, but not the legal thinking, is still the institutional roles, and Prejudice legal language.

Role orientation, system mentioned above the shape of different legal thinking and behavior of social expectation and self expectation, also affect the so-called legal judgment and expression. In the political arena, not in the temple, "legal" relationship with disputes or cases, legal person not only directly involved in these events or case is different, and not directly involved in the related events or case law as a spectator or legal person is not the same.

They are, if not as a case or event the parties or their relatives and friends, they concern is the outsider's perspective and value, according to the social and cultural tradition (the so-called natural law) and comes from a variety of sources (including personal experience, including film, television, radio, newspapers, novels, stories and other) and be reduced to fragments legal information woven about legal imagination, and from the news must be highly simplified even major error of the facts of the case, judge. There will be many in the legal people cannot tolerate errors and misunderstandings, but as long as the basic facts of a case or event not many errors and misunderstandings, generally speaking, at least in the typical criminal cases (except for natural crime, in the typical Chinese usually includes the crime of corruption and the treason and other similar crimes, but do not include the infringement of intellectual property rights, privacy, etc.) the traffic accident crime and ordinary civil cases, the judgment and evaluation, generally not and the legal judgement too outrageous, even radical, but that is often reflects mainstream a society (dominant) ethics and politics judge not, and a judicial decision.

Because it is "the system role in the dispute, or in the case of the blind" not what specific role, is not liable, but they can talk a lot. In this sense, "legal" this is just the sort of news consumers, you use the law the standards he, this is wrong, "Fools grow without watering. also", the law didn't need this with deep hatred and resentment! Ordinary people to the legal details of the event, or may be relevant evidence, or the operation system of judicial system limitation and so on, whether right or wrong, regardless of size, are not fine concern. They all have their own work, to love, to send their children to "Aoshu", can not spend too much time and energy to detailed understanding and analysis of related information, did not need to develop their own according to the law and to collect this kind of information processing ability, training, often long idle -- who just because I want to see a "the marriage of Figaro", must have basic knowledge about Italy opera know again? In this secular world in hurry, this is a luxury! Ordinary people are generally the first sketch television, reading or listening to obtain as legal event itself, only use their own in the formation of historical culture in the justice of intuition, only for those who touch their intuitive emotional event or case judgment, even if aware of the moral dilemma, they can only be, be no, don't spend energy exploration, is often simple. "Taking sides" to free yourself, save trouble thinking or confusion. In fact, they only need to approximate fair judgment, not, nor necessary, as legal person as required careful inference hook relevant evidence and their own judgments and opinions.

But the increasingly open in speech today, especially in the network, whether it is because of the anonymous, or because millions of people in this country want the eyeballs, attention and memory are delete selected as representative is also the most radical opinions and judgments, but silence is always the most. In this regard, the netizen's point of view and the legal point of view actually considerable differences. On the other hand, the network will also make some legal person some opinion or judgment or decision of fault or dispute amplification, interpret out of context, tapping one point less than the rest, and even some naturally or half unconsciously the circulate erroneous reports, [65] is bound to appear this kind of communication problems.

But what place to say, the society ruled by law requires everyone like and only as legal person as life, thought and expression! In a certain sense, even can say, the society ruled by law is the law that allows people not living, thinking and expressing, allowed to choose as long as no harm to others whatever life, in other words, allows the blind, also allows legal "proud of me"!

There is a problem, who provided, could only speak accurate expression of thoughts, and not just a state table, and very emotional? Only read too many books will think so; but it is also read too little, because 60 years ago, Wittgenstein pointed out, the diversity of language as a tool. [66] love, girlfriend says you "really bad", you can say her thinking, judgment or the expression is not accurate, unless you really stupid? Note that this is not the whole is in the Kua you, also expressed -- she's very happy, so, you can't tell the "bad" actually is the expression of who or what she is -- or you, her comment on your quality is her (to life or you) feel, or all this cut even more? Although I don't know, but you know, how a social life only doctrine?

Radical statements are usually not so in reasoning, even looks like in reasoning, on the Internet they usually is not to discuss the issue, but more is the expression of personal emotion judgment. Legal person may request accompanied by reasoning, but you can not force, but also a not accompanied by reasoning or can not tell truth judgement is not natural is a wrong judgment, in fact the world not many people can say that and tell their own decision or judgment of truth, think about it "you really bad" example; to say that usually only one reason, but not really "is the truth".

But "the world value judgment". And the empirical evidence suggests that, even in the America federal court judges, contrary to what one might imagine, just said, don't argue, because all know, no opponent can be persuaded. [67] in addition to a point, is also worth mentioning, when faced with the ordinary people not experts on the occasion, there are already many research pointed out that the expression of emotion, full often appeal than the precise argument, even if it is not convincing. [68] so we can understand why people who love extreme rhetoric expression. If you carry it out, say it is not reasonable, unreasonable, a mob Carnival suspicion, that is the law people always love to understand with their own rules of the game and others; and "shut up", or "Bitch is hypocritical," will be the legal rules of the game. But there is no reason to believe that the legal rules of the game is always right, unless the relevant academic publications, and the network is what place?

From this perspective, once you understand the actual function of Legal Rhetoric, and then have a look of conventional punishment, legal in recent years caused major social disputes in some civil cases (Liu Yong, Ma Jiajue case, Qiu Xinghua case, Sichuan Luzhou "kept woman" inheritance case, Xu Ting case, Sun Weiming case, and Li Changkui case) in the expression of judgment I think, no mistake, is not a significant loss of justice. The only exception is Yao's case, [69] but the main factors which is the case for the plaintiff (but he is blind?) , in the pre-trial and trial, the micro-blog released Yao is the "two generation", "two rich generation" and other serious inaccuracies, causing a major misunderstanding of Yao and his family literacy, stimulate hatred; [70] in which justice has many errors, [71] did not take these pressure.

It touches another legal rhetoric to the institutional factors -- they know as, although they also hope that at some point it will influence the decision, for example in the Yao Jiaxin case, but in general, they know they say not, before and after about a government, the judge and the many legal person, there are scholars, responsible, monsters are the eldest son top, which makes them tend to be not responsible. This is the human nature (note that not only is the blind). [72] therefore, only need a system, only need to decision makers, to dare and responsible person. But the government by law society does not require everyone thinking like a lawyer -- that have legal person stem what, what the court, ask you to repeat that everyone already knows the truth? And that one day, legal person will not be too lost? Not only jobs lost, and the spiritual loss -- can have a chance or occasions to show your wisdom of excellence and independent, and have the power to enlighten the people (Enlightenment)?

And in these circumstances or events in many -- but not all -- legal person will still keep calm, show the law of human behavior, whether because of his legal thought in the works? No, even if not directly participate in related events and judicial and judicial treatment of legal person, in such event, the others (SOCIAL) expectations as well as his own self expectations will secretly constraint discipline their words and deeds, so that he can not be blind like bystander. If someone asks him / her appreciation of the relevant events and judgment, or is he / she active about analysis and judgment of their own, even by a judgment of the observer, he or she will not be regarded as a legal speaking, people on his / her expectation is, he she will also demands on themselves, as a legal person to express a more detailed comparison of reasoning, therefore is to analyze and judge the convincing. Not only that, he or she must be more careful than ordinary people, more care and he / she is more able to care about the facts of the case and many details, antecedents and consequences, Cecil strands, reasoning and more fully. Only in this way, he says, is the meaning of the existence of many people, if just like other people just watch a state, called a mother, not a sub Wu Mao Yin, why people want to hear, listen to, even if finally does not accept his / her analysis? In addition to the professional point of view from his familiar way, he is able to save other more efficient method for themselves to get enough dignity (in fact is a kind of interest)?

Of course, you can insist that this is legal thinking make it so, this is generally harmless people understand, "wrong" expression if not to delay the understanding is not wrong; but the above analysis made me more reason to believe that, in the final analysis, is the society (others and himself) on his / her system role definition to make it so.

Even so, in the present Chinese, system space of legal person also have greater leeway, so its legal character is not the only or single, he can from the legal occupation people directly or indirectly involved in the case of identity, but also from the law of identity, but also by the identity of the person but the actual law by opinion leaders (known) identity to the public. When the first identity is, his / her opinion legal occupation was near, will be more subject to the system of the role of specific and their own interests, whether it is for the prosecution or defense or cutting or the expert scholar. When the second kinds of identity entry, only cutting event or case, he / she will approximate the judge -- view of balance, as from that of fair, prudent and according to the judgment, but he / she is still not a judge, he / she will not consider usually judge will consider other judges or second instance or appeal may advice, training and occupation interest (write legal papers, teaching case analysis, as well as with other scholar's discussion) will affect him off as pure spectator stand, tend to only pay attention to the academic significance of legal practice or theoretical point of dispute, rather than case in order to inherit, academic and get published, scholars tend to be "focusing on one point less than the rest". But if you consider that the contemporary Chinese legal ideology discipline pattern, in fact, Chinese law are often naturally or half unconsciously will more imagination, understanding and even little reflection to identity law position, not the prosecutor's position, even with the imagination and understanding of the law position to judge, very easy to cause the law bias, which is actually the lawyer is not neutral but is not devoid of reason's position as a judge or legal person should hold position. [73]

And this is at least partly support at the beginning of this section points out, even if the law is fair and calm self-confidence of the professional, because of its position, its conclusion may still be biased; this means that, even if the legal vehemence, unreasonable, and therefore easy to seriously affect the judgment of fine and reliable, but does not necessarily mean that the judgment must be wrong.

Eight, don't forget the law practical legal and suddenly floating

Even so, I still have to admit that, on the whole the eccentric analysis section, even didn't say so, gives people the impression that it is legal does not speak the truth, emotional, and legal analysis and judgement, even also by occupation interests, but always more professional, more calm. But the group generally always suspect, in the present Chinese, Chinese legal circles and the law circles in the face of the current.

A basic question is, isn't the law must know the law, but not the must do not understand the law, not in compliance with the law. When there is no occupation school of law in ancient times, excellent legal people all over the world, still have a number of practical wise decision, to create different legal systems. I'm in other places have to Pingyao Ya door about justice in poetic couplet, carefully discussed the careful legal considerations of the hidden, it is enough to make the law today and law "; [74] I was in another study analysis of Hai Rui case trial decision rules, show the hidden beyond time and space judicial wisdom, he embodies the social consequences of long-term consideration; although [75] Hai Rui in any sense is not a legal person, even by people who have been considered very dogmatic despite the incorruptible bureaucracy. [76]

It said foreign, one of the most typical example is the economist Kos. Kos wrote a great article "the problem of social cost" not only for their Nobel prize in economics, and more importantly, in the past fifty years, it has become the most cited legal papers in history, its thought by jurists promotion, to mass production, has completely changed the law, judicature and law of the America. [77]

Not only is the great man, even most are silent, not those who hope to use harsh words to attract the attention of netizens, judgment, in their thought according to the common sense understanding and grasp of the traditional criminal, civil cases, and the law of human judgment is very little, even though they often did not and will not with the professional terms, even if not very detailed demonstration.

Evidence!

The 2011 amendments to the criminal law (eight) prescribed crime driving into the punishment, in the administration of justice, the Supreme Court cannot be considered related to leadership in a meeting of the court system,, also should not be simply, totally drunk driving into the punishment; according to Article thirteenth of the criminal law proviso "plot remarkable slight harm not big, not that is a crime". The [78] according to the legal doctrine is fully established, the Supreme Court has reasonable consideration of social consequences. But the network, do not understand the article thirteenth of the criminal law, do not understand the restraining criminal law, not law doctrine legal lashed out at the Supreme Court, attacked the reason is: even if the court well meaning, but in the moment Chinese, (1) this will give some powerful relationship of drunk driving in the system, through or not through the law, escape punishment reserved space; and (2) must be very easily and will lead to more first is the court of corruption, and (3) the prosecutors and police corruption; (4) which will make the majority of the people of justice and the police more a lack of credibility. So the conclusion is, weigh the advantages and disadvantages, the drunk driving into the punishment should "make it rigidly uniform".

Notable is, always sensitive practitioners groups on this issue seems to lack of sensitivity, it is very limited personal view, I don't see a professional lawyer stood up, said the idea is not comprehensive. But this does not have reaction 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 according to Article 13 of the criminal law on drunk driving the distinction, at least a criminal defense lawyer will Business Flourishes, rich resources, in addition the car in China, practitioners are. Therefore, although the common people and the legal response seemed completely opposite interests, significant differences, but the question and think they really care about the manner in which logic is highly consistent, they don't really care about the article thirteenth of the criminal law doctrine, they care about is the law practical consequences, impact on their interests, and the change in the pattern of social interests.

But that's not saying law people and common people always conflict; in some other does not have direct significant effect interest sb and one of industries of the occasion, in some respects, occupation analysis conclusion daily thinking conclusion will and legal person are highly consistent. Many legal and law are also suspected that the actual effect of income on second-hand housing transaction levy of 20% business tax. [79] no one doubts that the State Council promulgated the regulations of the motives and intentions, no one questioned this provision in the text, no one cares about it do what explanation and demonstration question, different people are of the provisions of this Law (SOCIAL) results: Economics challenge that can not or can avoid price the rapid rise in the extent, and society to the sale of second-hand housing people, can be presumed to belong to the basic literacy, concerned only with the provisions of the payment for the interests of both sides of the potential transaction -- the legal effect of actual distribution by the sellers of the transaction tax is paid by the who, which depends entirely on the second-hand housing is the buyer market is still a seller's market, and has nothing to do with the letter of the law; legal person and only concerned about their occupation interest not caring about the macroeconomic impact of this provision of housing, also don't care is buy a house or pay the seller the transaction tax, no matter who, as long as the lawyer's hand, you are not my copy.

Also because of this provision, the legal predictions, around the second-hand housing estate tax avoidance will be quite a number of so-called "false divorce". While second-hand housing market transactions, [80] and numerous "fake divorce", [81] is independent of their respective and carefully planned action together perfectly demonstrates and confirms the prediction of legal person, fully shows that the legal and law are not always be misfits, sometimes also can have mutual affinity. And this time, many people also really became blind -- they don't know the law only divorce, not what "false divorce," so many people "lose both men". [82]

These ordinary people are concerned about the practical consequences of law in society, to his influence, therefore highly pragmatic, result oriented; don't seem to believe in law, even silly, but that is in a specific form he's really not letting this go "according to law"! This is not also a belief of the law, they also need to Jiaqing claimed that this belief?

These are to be very careful in reckoning and the amount of economic benefits greatly, these individuals are some people is city white-collar workers, and even the middle class (or how many Suites?) There will be legal person, or other readers think, this may not be representative of the "real" legal thinking. Say "real" is not reasonable, because give what examples can be said is not "real", but was the fall two empty personal financial false divorce are not? But I still turn to two people can see the face of literacy, two real farmers, the murder of the father.

Before Yao Jiaxin case pending, Zhang Miao of the dead father Zhang Pingxuan reiterated his only ask for Yao to death, to comfort her daughter the spirit of the deceased; afterwards, this probably by their legal representative is the relatives of the Zhang Xian effect. But after Yao was convicted and executed after, still is this piece of Pingxuan, in a media interview that, afterwards think, "[Yao] his mother his father is feeling a little sympathy....... (because Zhang Pingxuan himself) and two children, (...... Inevitable and rely on medicine), do not have something to rely on, just a kid, I don't know what Yao his mother his father who is a what mood, I want to." [83]

Analysis of the Zhang Pingxuan is very calm and prudent, he not only consider the needs of their own reason to get respect emotional benefits, not "one rib", is not only concerned with the law; he temporarily keep out of the affair, as a spectator blind, began to place oneself in others'position to consider their "enemy" parents, potential benefits their future life state -- a modern judicial system even Chinese has not officially considered criminal family, at this moment he put some scholars must also have scholars deny the "judicial social consequences" completely specific, practicality, which implied the conflict but the interest balance. He may not be a complete high school education, but this moment his detached, neutral balance of interests, and he does not have to accept the attitude but not to the exclusion of emotions, is an ideal judge should possess.

In the case of Li Changkui [84], the victim's father Wang Tingli and other relatives have not accepted the Yunnan high court in full compliance with the provisions of the statute law adjudged, the Internet for help from the public, determined to overthrow in the legal procedure and the legal theory has been the entry into force of the appellate court, regardless of their actions will damage the part of legal person day like holy judicial independence, regardless of their actions such as some scholars said further "undermine the public credibility of the judiciary," determined to believe that courts and judges from the law-abiding citizens become conscious and Sike legal, not because he / they are legal, it is precisely because they do not blindly believe in law, do not blindly believe that some legal person giving and they swallowed the so-called procedural justice, rationality, safeguard judicial authority and legal value of the rule of law ideology, because China history of rule of law, social consensus and contemporary Chinese national law and judicial practice together to create a common peasant for the rule of law have every reason to get enough respect and meet the expectations, but a helpless blind for the judge, the court, Political considerations of justice and of the people's Republic of China have unconditional trust is reasonably certain is not without the high court of Yunnan -- "leniency, distinction, outstanding combat focus, less kill kill carefully" policy -- broke. Although not clear discrimination, there are also some legal reasons (such as neighborhood dispute escalated into violence, Li Changkui has surrendered plot), but this has certain reason political considerations are the "wide" and "little" and "trial" in the implementation of Li Changkui's body, but through the relevant judicial the costs are imposed on the lost two children Wang Tingli, in large part because he was a farmer, no money, no power.

In the Yunnan high court judge heart may think and judge, in order to realize the great goal of all human beings to reduce and eventually abolish the death penalty, in order to realize Yunnan province relevant less kill kill carefully hard index can be sorry, Wang Tingli. But Wang Tingli and his family admit that although the legal person, acknowledging the final abolition of the death penalty and is very important for legal person, that reduce the death penalty is important to enhance the soft power of China improvement China country under the rule of the image recognition, to achieve these goals, each "benchmarking" Yunnan high court fee with great difficulty to establish [85] is the most important, but they are not really know, Lee Chang Kui is very important for their!

Are they the judgment and the corresponding thinking wrong, really is blind? Few people need the law to safeguard the judicial dignity against "promise and then deny in succession" while maintaining the original trial suspended death sentence, the numerous legal and most legal person sincere support Wang Tingli, until no one thinks Wang Tingli requirements what too. Today, especially in Yunnan Province High Court on its own initiative to remove the original two trial of retrial commuted the death sentence, the Supreme Court shall be the death penalty review, all of which suggests that, at that moment, justice, law and human point, also can only point, the helpless farmers legal family emotion, judgment and intuition, although they did not say not say too much too eloquent reasons!

And conventional criminal civil cases, there are many legal thinking on, analysis and judgment is not outrageous contrast, even educated in law, stay in this line of business law, and even the scholars think that Professor of law is quite good, as long as the ideology priority, or is the only law, doctrine, principle, procedure justice, the legal truth, justice, rights of these words and other good words and language, speak only reasoning regardless of the consequences, only pay attention to the concept of quality, not of the real world, the brain would be broken, can obtain very outrageous, I find it hard to believe that they believe the conclusion.

For example, in the re trial of Li Changkui, advocated the colleague Professor He Weifang I, although it is wrong the high court of Yunnan's original two trial, but in order to maintain the independence of the judiciary, to prevent the judicial play fast and loose, safeguard judicial authority, therefore no longer commute, maintain the appellate court. [86]

This abstraction, seems quite right. The judiciary must balance various interest worthy of protection, including criminals benefit, also including the courts the authority. But this does not mean that at any time at any cost to a society and even the court itself has already been considered decision unfair major, a law is not wrong but will still leave the moral stain judgment; and why the Yunnan high court can not take the initiative to bear because of their own mistakes lead responsibility, let in the event completely innocent because of crime and the crime and trial judicial dispute and the number of injured, and is lying in the gun, the Chinese bottom peasant family to bear? That's not fair. But the high court of Yunnan not only have the ability to bear, even the bear will repair its image, compensate for the loss of one's authority. Moreover, it is true, or imagine -- as long as the court not to "mistakes", no remedy, mistake, Chinese legal are slowly can adapt to this great form rationality and procedural justice, judicial credibility will grow with each passing day?! Do the mathematics of the "two negatives make a positive." here is applicable! It will make people feel the word does not play fast and loose? Will let the people who feel that the court is not to take our p people's life seriously?!

Well, if you insist on final, believes that the enhancement of the public credibility of the judiciary is the most important point is that the court should have the courage to stick bug, but why, you have the other major grievance but later discovered, such as the Nie Shubin case, and does not speak the final, not allowed one wrong, don't speak two negatives make a positive. The high court of Hebei, not only the promise and then deny in succession, and they also promise and then deny in succession? "It's wrong to kill [87]! Major case!" Yes. But that is precisely, two instance system is not sacred to not allow any exceptions, the problem is whether the case causes great, and how much?! But in the case of Li Changkui, the legal person for reasons not it by not significant, the reason is the justice can not play fast and loose! This is Chinese argument: utter words that do not hang together, the logical inconsistency.

In another example, relates to the other one of my colleagues, a great constitutional scholars. At the UN in Libya to set up no fly zone of Eve, he has decided to abstain from voting on, this is equivalent to allowing foreign war against Libya, China government organized a large-scale evacuation There was no parallel in history. in Libya. This, according to Professor Zhang Qianfan, he thought that the unrest in Libya is a "democratic revolution" this generalization, coupled with the "democracy is not always and confusion together" this logically obviously correct correct assertion, deduce the conclusion "China not removed from Libya bridge". [88] here to highlight is another fault legal person easily made, only care about the abstract concept, concerned about the general proposition right, rather than the specific investigation of these concepts and propositions empirical content in specific events, on the basis of deductive reasoning that one may involve too many people life security decision or judgment. The decision criteria. This not only highlights the legal person is "prudent" may also in the legal field, familiar, once he entered the unfamiliar, it is easy to a powerful and unconstrained style, far more than is not careful, it is not very careful. This also proved once again that my previous argument, prudence and whether legal thinking has nothing to do. Not only that, I said, we don't really believe their inferences, otherwise why just one or two days later, the Libya war in two weeks later, self delete this micro-blog?

 

 

My criticism is a clear violation of the "rabbits do not eat grass Waterloo" adage, but is "focusing on one point less than the rest", a relentless attack. But my criticism not only because I did not agree with some opinions and judgments, nor to be wise after the event to laugh at a pre sentence improper; views and errors of judgement is normal, no one can avoid, so blameless. I just use these examples to point out, the law of human thinking is not as if the legal person as the calm, careful, prudent: even in the contemporary Chinese outstanding legal scholar, also have a legal claim concept, emotional and so-called argument. In the fields they are familiar with, by the system and benefit restriction, perhaps not too fast, and once the cross out or decided to step out of their areas of expertise, to only depends on the legal knowledge and only depends on the legal identity of the person are not very familiar with or even completely unfamiliar problems in the field, then he is his "words" to give away. Some of the smart and confident legal person, will sincerely say many finally even can make out a good case could not really believe, or even just make out a good case to show its because it does not really believe, deaf and stuff, and take practical action to prove again the world public intellectual thinking or universal values -- "public benefits many, knowledge of good". [89] even has "tell the truth", but very paradoxical -- not -- "honest" (genuine honesty). [90]

Nine, how to misread the truth?

If there is not a kind of legal person is the one and only different from ordinary people thought, the rest of the problem became law, why people will accept and believe in law thinking this argument?

This paper is expected to roughly understanding, think like (a) the legal person that thinking is "don't like (ordinary) think like", and the legal person is a kind of special thinking.

Also on the rule of law science and the traditional Chinese misunderstanding. According to the traditional Chinese without rule of law, because of lack China social or Chinese called a legal person to think about things, such as Webb's "formal rationality" such as [91], and the China building the rule of law in all aspects, one is to think about the cultivation of legal person, and is a national.

But from a knowledge perspective, there is a profound influence of ancient philosophy. Whether it is "thinking like a lawyer" or "legal thinking" of the proposition implies an about people's thinking and behavior of the philosophy and psychology of ideological behavior: command, thinking everything. It is assumed that a long history of spirit and flesh on the human spirit than flesh and. We observe the legal thinking or thinking does not experience, not observe their brain or other organs in the physical or chemical aspects, also cannot say business people, literature or chemical people thinking at the empirical level comparison of legal person up, we just see the legal acts and these acts shows certain characteristics or pattern; even if we could see him or her why the behavior of some subjective interpretation, even to be honest and sincere, also may not be trusted, because people often, are used to think, to find a reason to act, they find themselves so act. The judge is no exception in the administration of justice, and sometimes even must have a reason. [92] has long been used to express the traditional philosophy, legal person's behavior by this spirit, we actually just from the behavior of backstepping, there must be a legal person's thinking.

But this is not harmful, just show that the traditional philosophy of mind left traces in our thoughts and actions, it must have legal occupation work seriously, seriously, pay attention to the characteristics of distribution of interests and consequences, pull the words and deeds cautious behavior, said to be thinking guidance, not accurate, also a little praise the goods one sells, but if nothing else, it can fully understand and accept. [93] and, even if the level is lower, the so-called legal thinking only refers to the legal person, used in terms of exchange, also need not rivalry. Although this also did not say what is "thinking", but the term, legal people construct the occupation of mystery, with ordinary people apart, creating the authority of judicature, mysterious and authority, to prevent the "near inferior", while also facilitating economical effective exchange between legal person, even in now the "Disenchantment" era, also can accept, because it can also contributed to one of the positive factors of effective operation of law. [94]

But this functionalist perspective, one not careful, will touch the Chinese law introduce relevant propositions, why to create positive and promotion of "legal thinking", because it is the contemporary Chinese law and jurisprudence had and has maintained a special social function, sustenance, bearing and entanglement major interests many China legal person!

If only its influence on the Chinese legal teaching occupation orientation change is affected, the effect is not significant, in spite of the master of law education, but still not quite like the occupation education. This is mainly because China legal occupation since 1990 time metaphase begins after gradually forming, no accumulation of much occupation knowledge and skills to teach; many law professor without such knowledge and skills can be taught, because have few or no judges, prosecutors and lawyers experience, can only be an anachronism, more willing to "watch"; and those many accumulated some occupation knowledge and skills of both judges, prosecutors and lawyers, even though most nominally in some law schools and jobs, generally no time or opportunity to really get into law school teaching, and occasionally into the campus, more as students occupation idol, and not become occupation model. Even so, the "thinking" as legal person as basis, slightly to the processed "legal thinking", but there are significant social functions for the legal person, it is the market.

First of all, 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. Although, as in previous analyses, legal thinking mode, or character, without what the place out of the ordinary, but even so, also do not understand the saying. If the judicial settlement of disputes is in judgment is not based on the balance to maintain the legitimate rights and interests, just a bowl of water, or simply say "OK", maintaining social harmony and stability, [95] law will shout "justice?" ; or lawyer is "by people money, running from", also cannot accept the legal subject status and social status of lawyers, especially in the 1990's, Mr. Dai Yi sentence is not harsh comments, "law of naive", let many people Geng Geng nostalgic law for many years, too much to handle?

Legal education and the school of law also will be a problem. Because of the lack of traditional legal occupation, China law education since the late 1970's, has been an embarrassment, a society in need of legal person, the rapid expansion of legal education, and on the other hand, due to various social and political, legal education is weak, not what good can be taught, in addition to participate in legislation, textbooks and law propaganda, copy foreign scholars and the scholars of Taiwan works, basically have no what like academic academic.

Research on the legal theory scholars is particularly awkward. No matter how the department level, was also at least some concrete law regulations, will also have the real case; legal history, there are a pile of materials slowly comb, find what and contemporary Chinese of real or imaginary in contact; and the academic research is not a world no, not always stop in the criticism about rule of law, rule, -- this is politics, ideology propaganda, not the law, nor even of politics and law; definition of debate, treatment of water than the sword for good where, this kind of thing certainly will debate continues, because never have the conclusion, but it is difficult to rely on this to make a living? And no one listened to.

It is in this embarrassment, independent of any single department law, and specific cases of separation, the abstract legal interpretation, argumentation and reasoning, and the associated "legal thinking", the law, especially the law theory circle, there is social work very special energy.

No matter how the actual results, "provides a academic and theoretical meaning means legal thinking" to say or to legal theory circle, only a theory of law, people are more concerned about, seemed more ability to care about territory, and later proved that really basic theory of law is home vegetable garden. Here, 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 on the study of abstract, this means in a certain sense to found a theory of law a so-called research point of growth in the late 1990's.

The point of growth with a special symbolic meaning of law education, not only for the higher legal education is expanding, but also to come with judicial occupation, professional judges and prosecutors occupation training, but also special significance. Whether true or false, regardless of whether the useful and practical, but the level of education that judges and prosecutors is very low, [96] lawyer industry has just started, practitioners qualifications is not neat, also law, only the University as a group, at that time the only barely wearing "legal person" hat. Although many scholars have not as a legal person in real analysis and heard even a case or a legal matter, but they have this hat, can be right and proper, be in the right and self-confident training judges and prosecutors "legal thinking", regardless of training judges and prosecutors in the occupation have been working for a number of years.

With the more and more big "legal thinking, legal person", together with the part of practice of legal person, can also be sent in almost any social event legal person voice, show the law of human knowledge will and the will to power. Even if not practical, but with the legal thinking this guise, can say and do some or even feel unreasonable not reliable words and things, needless to say, we can assert that, without reasoning, is rational, because "the law must be belief", because the law is a ancient discipline, is the "artificial reason".

In this background, the pattern of interests, these claims has become the truth, legal person's occupation interest so hidden under the banner of legal thinking, legal person biased and even paranoia can also be proven experience of rule by law and therefore it has undoubted value, not only can establish monopoly gradually in the field of law in the battle, and with other disciplines of knowledge / power, by the means of "rule of law", enjoy the "truth" presumption, any objection must complete the burden of proof. Originally used to teaching practice oriented training school of new rules, now changed into the legal person self promotion and public relations, lessons and Enlightenment Chinese legal capital. Suddenly, a naive law has become one of the famous school in the Chinese in society.

In the education of law, seemingly twin brothers, but different, "thinking like a lawyer" law college students not only from books to understand the law, only know how to pull the words and the law, and to walk into the legal practice, to understand the real world, than ordinary people more fine more sensitive about possible social consequences the definition, and law and keywords practical boundary in this kind of possible options to choose carefully and; and "legal thinking" requires all must enter the legal doctrine woven world, understand, do not understand the need to accept, accept the judgment and inference of the legal person, the legal person is to with its own rules, beliefs, judgment and conclusion to transform the world, or in violation of divine law. [97]

But that is not education, it is brainwashing.

"Legal thinking" of the epidemic 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. Because he had four years of law school, even when the defense of the director or secretary of the Communist Youth League or mayor, also one's whole life of legal person, while others just because when the soldiers three years, admitted into court, do and trial a case, faced to face at the age of 50 he was retiring ahead of schedule, the reason is not occupation; because they were lawyers or law professor, natural has the sort of moral and intellectual superiority, even can say hello goodbye three grams of oil, but also have the right to claim what is world of rail, mouth closed foreign how. The strange thing is, sometimes, some more implausible assertions, dogma and judgment, the more convincing the world if there is a thing called "legal thinking", otherwise how could so grumpy and metamorphosis! And finally, some legal person told us the answer, the rule of law is the legal rule. [98]

This was an innocent mistake and myth may occasionally, but a mistake and myth to insist, secure to rely on, even if experience has repeatedly proven untrue, but still embraced, hold and defend, it is by no means accidental. It has become a new interest groups to maintain the interests of occupation, easy to attack and retreat, ideology big kill. Because of this proposition for the legal person of great social function, this error will be in, must also be in history, baked into the truth! [99]

Ten, law education and beyond the legal thinking

Although it may be misunderstood, criticized and rejected "legal thinking" is not critical and refuse to be wrong in law thinking, qualities such as rigorous, pragmatic and other legal person. On the contrary, Chinese law school must spend more energy to continue to promote and realize the transformation of the education, thinking like a lawyer -- is in fact behavior; text reading, legal reasoning (analogy), legal interpretation, doctrinal analysis, must and should occupy an important position in enough law school education, this is for a 18 year old high school student after law school to become a pilot can let the ordinary people worry legal people enjoy the services required.

But not all, are not at all. These skills or knowledge is used to deal with conventional legal practice, the conventional law dealing with legal affairs, which of course is big, to people's daily life important. But for the rule of law and jurisprudence, from a long-term point of view, I think the law school is more important to cultivate the legal person has the ability to respond to those beyond the conventional, must the individual coping term may have a general problem. Because, although the rule of law is rule governed; but in modern society, beyond the historical definition of the conventional problems increasing, many departments have been unable to rule governing law. For example, no matter in which country, every antitrust case law or judicial decision is almost the case study of a comprehensive empirical and countermeasures; such as [100] many environmental justice, so only the environmental projects that -- think of what I had the civil contract to assess the claim; and in some areas, system the fact that the original structure has been in a disastrous state, is difficult to maintain, such as intellectual property law Internet revolution; [101] virtual currency not only attracted the attention of many researchers, also caused the law to deal with the state system. [102] even in the criminal law such traditional areas of law, such as criminal reconciliation and community correction and practice, sentencing discretion, earlier commutation, plea bargaining (institutionalised leniency to those who confess who resist), also has made the idea of criminal law principle of legality, almost just a philosophy; on the other hand, the "war on terror" the criminal law faces the new frontier, because this is a ranged from war and crime domain, rather than a typical field of criminal law, it is difficult to effectively deal with the traditional criminal law. [103]

But these are beyond the conventional case could shape the legal territories and boundaries in legal practice, the future may have fundamental significance. This is why when Holmes says, "(he) can provoke the strongest interest, not people think of great disputes and cases, but some trivial decisions, the general case compilers will pass these decisions, but those decisions in a more theoretical yeast open, may bring profound changes to the law of local the body." [104] in addition, if the traditional domain rules are executed, then the face of new problems or new field will be out or selecting rules of the problem more serious; but this is the big problem appellate judge made law even as lawmakers must face.

In the face of today's society, the legal person of traditional skills and knowledge, both legal reasoning and explanation, casuistry, or doctrine, have been unable to meet this kind of need of social life, because of the impact of the rule of law in modern ideology, these skills are filled with and sometimes really try to avoid the analysis of the problem of the law, also assumes that the various factors constant -- a mere thought experiments in China only possible condition, as far as possible to deduce the process of judgment from the law, deal with similar cases in stable rules, value and path selection in various doctrines or analogical reasoning and interpretation of the law lay effectively conceal cutting in the argument implicit, launch looks It stands to reason. conclusion for some slight abnormal cases from a known clear rules, or in the name of and the process of interpretation will complete the referee the judgment and legislation, law and precedent seemingly seamless docking; plus the court and the judge's authority, behind their countries plus mandatory force, the law can be obeyed.

All these inferences can be quite fine, will greatly help to persuade some have no direct interest relationship with the legal decision, may also persuade those in which only some marginal person interested, but not the answer: first, when the current law, precedent rules do not remind me where to go to the occasion for example, can expand can also narrow interpretation, I couldn't just using these methods to find my direction; second, it could not tell me in one direction or the far more appropriate, even if the "legal thinking" or judicial experience told is should be careful to promote, but this step is what is be careful? From free to criticize the government to allow the burned since the purchase of the flag is a small step or stride? From the political freedom of expression to the commercial expression freedom, freedom of the press to pornography, political donations to the infinite, whether it is a small step or a step, or even an impassable chasm? Or, if only for "expression", this is just a small step, but a means of expression and content, which for some people is a big step, even the gap. Can you really get ordinary parents generally believe, let your test high school 15 year old boy reading "Three Hundred Tang Poems" or "a brief history of time" and "reading" Jin Ping Mei or "penthouse" (Penthouse) true difference is small? Although in the eyes of the acquisition of waste paper business, it makes no difference.

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 unable to accept the transaction, therefore the party concerned or the 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.

Therefore, whether legislative or judicial, cannot only pay attention to the rules, we must pay attention to the actual effect, it must be true social phenomenon among about how to contact, rheological and why rheology of natural and social science knowledge. If you want to drop prices, so that people can afford housing, can not only provided for the sale of owner occupied housing in accordance with the law strictly according to the transfer of 20% of the proceeds of tax, must understand, under certain conditions, for the good of legislative intent tax could improve the purchase price, leading to the legislative effect get the opposite of what one wants. If the Supreme Court does not wish to be stereotyped drunk driving into the punishment, it can't just come up with Article thirteenth of the criminal law advocate the plot remarkable slight drunk driving does not constitute a crime, and must be taken into account if the circumstances are obviously minor and can be exempted from some drunk driving, in the law practice is what people are more likely to receive an exemption, what is the positive or negative influence on law enforcement and judicial, may impact on the court's judicial authority and credibility, and all of these considerations must be beyond the traditional law, law, the legal doctrine and legal principles, beyond the procedural justice, formal rationality, it must involve a lot of social science, related to substantive justice, substantive rationality.

In order to strengthen the ability of the legal person, it must be beyond the so-called "legal thinking", in other words, the concept of legal thinking must be rich in experience level, to make the legal person is at least some understanding of social science knowledge, knowledge and ability in some areas but also familiar with the relevant professional field, enhance the legal consequences legal person to a field of sensibility, understanding and ability to judge, can according to the many possible consequences and tradeoffs of anticipation to re understanding and interpretation of the law, answer and solve social to legal person, if necessary, even if has the rich to his or her thinking is not legal thinking, what's the matter? Again, "the world value judgment". And as long as appropriate and useful, the society will redefine the law, legal person and the legal person's thought, that the law is the law of people do, legal person is doing those laws, circular definition of this kind has many outstanding precedent! [105]

This requires the teaching direction and content of law school must have a major adjustment. As the direction, law school in addition to the necessary knowledge to let the students grasp the legal person and the basic skill, also must let the law school graduates in the face of new problems, and can not find answers when the law, what they should and could be where to get help, and to the law practice in the Department of law teaching content, increase the content of.

This proposal is not as people seem so radical. I didn't say, also not ridiculous to say, before entering the legal occupation, legal person to learn to master the knowledge, or law school must teach this knowledge. This is not possible. I'm just saying, law school should let students understand the legal operation in the real world, people why and how to use the law, that is to teach a man to fish is better than giving them fish, is to think like a lawyer. School of law knowledge and skill training must enter the legal person as the knowledge view and for the effective use of legal person to create space, to liberate the students through the education of intelligence, open their horizons, let them see and understand the complexity of the real world, understanding the function of law is to effectively deal with and regulate the real life world, instead of weaving a woven by the definition and concept of the world, and in order to criticism and denial of life world. To make them understand, real world law is not running in the legal concept of neat and tidy in law and rules, has own life world, the law may not to change it by their own power, but only with the life world of laws to regulate it.

This is not a very difficult. We have analyzed this problem, face the life and work style, pay attention to the height and the consequences, it is all natural share, almost consciously, instinct, although people tend to pay more attention to more emphasis on their own favorable consequences. And because of this ability, the ordinary people can become the legal person excellent through training.

But the problem is not just Chinese only. In some way, also exist in the USA. 20 years ago, Posner pointed out that, although there are a handful of outstanding judges in the law school is the star, but some star students when the judge is not good. [106] he was also the analysis thinks, Holmes Lochner v. New York opposition, that he believes that "the judicial opinion" the greatest over the past one hundred years, into the law school exam, did not get high marks. Why [107]? In my opinion, this is because the judgment standard law school forever more relevant legal concepts, texts and teachings, is backward looking, not the decision effect, it is forward looking. He also pointed out that the peculiar experience American legal history of some of the great names 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 thus the conclusion that the great hidden on law is to beyond the law, beyond the traditional definition of stenosis of the law, the only law, do not care about the consequences of the legal doctrine. The possible implication is, law school evaluation criteria may be more based on the existing common law, the doctrine of legal reasoning, interpretation method, the conventional argument and legal, can not replace the mastery of the issues, to grasp, to the extent, affect a word to the law of real world. [108]

 

 

 

 Another phenomenon is, more or less is also associated with a point, USA Chief Justice legal effect to colleagues, and by the decision of the Supreme Court of America law, often depends on the chief justice's political and management ability, rather than his legal reasoning ability. [109] and if my reasoning is good, the implied and related problem is discussed here, it can actually affect the law, appears and laypersons, skills or thinking, those non legal skills and abilities but the legal person.

Citing these laws celebrity is not training objectives to re define the law school. Holmes or Posner, frankly, perhaps is not the main law school culture; it's like Xi Jinping and Li Keqiang have law degrees, but it's hard to say they are today is legal education results, because they also have a brigade secretary and party secretary experience. The common law law school training goal is. But even so, from the above it can have between them, but if the eyes are not up, hands will be high up?

Conclusion: thinking? Or belief?

From the perspective of "thinking like a lawyer", in this thinking and demonstrates, there is not a legal person can be used independent of social judgment, as the basis and the criterion of truth, and the claims of regnant the world law thinking.

This cleaning may change some people "legal thinking" towering even sacred image; but also some people accuse me of stroke tile a precious human belief in law.

In fact, I fully admit the importance of professional knowledge and skills taught in law school legal person, but it is not all, today is obviously insufficient. I admit that she is a beauty, just don't admit her the best in all the land or only just, worth the fight with me? [110]

And if the image of tall, sacred totem, so easy to shrink and obscene? Your beliefs, so easy to let people to stroke tile? It is really sacred? Or are you really believe? Will not, just for the sake of a legal person's identity, a symbol of the legal occupation, an even inner self consolation, you have sincere hope that it is sacred, as also believe I believe -- question until I?!

"We must not let your mind to avoid suspicion, and the achievement of a false belief, faith is the highest achievement of knowledge" (I add emphasis), Ye Zhiru is said to [111]; but faith must be intellectual, rather than their own beliefs, achievement.

But from another angle, I'm just law one way to experience, from the aspect of can be shared, the discrimination of "legal thinking"!

In March 26, 2013 April 15th the first draft, two draft from Shihezi University Institute of politics and law

* a visiting professor at Shihezi University College of political science and law, Peking University law school professor in Tianyuan, the Yangtze River scholar, dr..

(1) quoted from Engels: "Engels and Laforge", "Marx selected works of Engels" (fourth volumes), people's press, 1995 edition, page 695th.

(2) Chinese search I found the earliest translation in, Wang Chenguang: "the law education in confusion -- from the comparative perspective", "foreign law" set in 1993 second, seventy-first pages; of course, the word translated as "thinking like a lawyer".

(3) W. B. Yeats, "Easter 1916", Selected Poems, Penguin Books, 1991, p.119

[4] Oliver Wendell Holmes, Jr., "John Marshall," in Richard A. Posner(ed.), The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr,University Of Chicago Press, 1997, P.208

[5] K. N. Llewellyn, The Bramble Bush: On Our Law and Its Study, Oceana Publications, 1960, p.116. and see, Frederick Schauer, Thinking Like A Lawyer: A New Introduction To Legal Reasoning, Harvard University Press, 2009; and J, Kenneth Vandevelde, Thinking Like a Lawyer: An Introduction to Legal Reasoning, Westview, 1996

[6] USA National Lawyers Association of legal education and qualification of lawyers in 1979 according to the report, USA law school training lawyers should have the ability in three aspects: basic skills 1 certain; 2. about laws and legal institutions of knowledge; and the 3 will these skills and knowledge are reasonable and effective application in practical work ability. ABA Section of Legal Education and Admission to the Bar, Report and Recommendations of the Task Force on Lawyer Competency, The Role of the Law Schools, 1979 (Cramton Report). Note 5 lead Schauer book that, if there is what makes the legal person is different from ordinary people, that is to master a set of known as the legal argument and debate and decision-making skills, which is called as a legal way of thinking. His works focus on the following issues: the rule of law, precedents, authoritative, analogical reasoning, common law, legal realism, law interpretation, judicial opinions, make law (rules and standards), legal issues and questions of fact, the burden of proof and presumption. All of these things and Anglo American law, especially USA 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 legal system environment, work and think.

[7] Schenck v. United States, 249 U.S. 47 (1919).

[8] is not only I, many USA legal person also does not really understand Holmes's standard, therefore has weighed in American political culture is considered "was wrong", according to this method, so the curse, slander, belonging to racial hatred of speech, which is the freedom of speech, but that was bad, natural without protection. Judgment until the 1969 Fort Brandon case (Brandenburg v. Ohio, 395 U.S. 444 (1969)), American judicial then is actually repeated thousands of customers, established standards; the establishment of prohibited speech standards has three main factors, namely the intentional illegal speech caused immediately, and this behaviour is likely to occurrence.

[9] Bates v. State Bar of Arizona, 433 U.S. 350 (1977). in this case, American Supreme Court judge, lawyer advertising is a form of commercial speech, have the right to obtain the protection of the first amendment to the constitution, the Supreme Court emphasized the importance of information flow advertising make consumers benefit, the public easier access to legal services, and therefore, improving the judicial operation.

[10] please refer to Posner: "and rational", Su Li translation, China University of Political Science and Law press, 2002 edition, the thirteenth chapter.

[11] please refer to Wang Shuo: "I see Lao She", "the ignorant fearless" Chunfeng Literature and Art Publishing House, 2000 edition, page sixty-fourth.

[12] McConnell v. Federal Election Commission, 540 U.S. 93 (2003), Davis v. Federal Election Commission, 554 U.S. 724 (2008), Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). These cases step by step identification, political payment is also a protected by the first amendment form of speech, and commercial enterprises also enjoy the constitutional rights of the people.

[13] see, Thornhill v. Alabama, 310 U.S. 88 (1940); Senn v. Tile Layers Union, 301 U.S. 468, 478 (1937). See, Ludwig Teller, "Picketing and Free Speech ", Harvard Law Review, Vol. 56, No. 2 (Oct., 1942), pp.

[14] Texas v. Johnson, 491 U.S. 397 (1989); and U.S. v. Eichman, 496 U.S. 310 (1990).

[15] Oliver Wendell Holmes, Jr., The Common Law, Little, Brown, and Company, 1948, p.1. note, saying this is often simply translated as "the life of law is not...... , is......" ; this translation can, to a certain level can also accept, even is a kind of creative misreading; but only if the text, Holmes discusses the only common law, do not even include USA law and the constitution, therefore this famous strictly speaking only to the common law development (life) precise description.

[16] can see Wu Hongzhi: "in the context of American 'law thinking,'" carrier "jurist" in 2009 third.

[17] with note 2.

[18] by 1995, the court system with bachelor degree judge accounted for only 6.9% of all the judges. See, Zhu Jingwen: "Chinese legal development report -- database and index system", Renmin University of China press, 2007 edition.

[19] Qiang Shigong: "the legal community declaration", "foreign law" set in 2001 third.

[20] community of legal persons, really dead, but maybe it was never born." A graduated from China University of Political Science and Law of Beijing judge finally realized. See, "the judge" micro-blog, April 7, 2013,Http://weibo.com/1552302990/zr53nh6dX.

[21] Chinese at least there is quite a number of legal department, including some now famous legal department, is the predecessor of the political system, political system, or separate from the political science department; and many teachers before teaching law faculties, or may be engaged in other occupation, and even non law majors!

[22] example, Liang Huixing: "the hermeneutics of civil law", China University of Political Science and Law press, 1995 edition; Liang Zhiping: "problem" interpretation of the law, Law Press 1998 edition; Zhang Zhiming: "operation" analysis of legal interpretation, China University of Political Science and Law press, 1999 edition; Yang Renshou: "the methodology of jurisprudence", China University of Political Science and Law press, 1999 edition; Zhang Baosheng: "the theory and method of the law" reasoning, China University of Political Science and Law press, 2000 edition; Huang Maorong: "law and modern civil law", China University of Political Science and Law press, 2001 edition; Hu Yuhong: an introduction to the theory of "legal methods", Shandong people's publishing house, 2002 edition; Larenz: "methodology", Chen Ai-e translation, commercial press in 2003; section: "the hermeneutics of civil law" in Japan Fudan University press, 2005 Edition; Xie Hui: "China classical legal interpretation to" philosophy, China University of Political Science and Law press 2005 Edition; Ren printing: "methodology of civil law", China procuratorial press 2005 Edition; Chen Jinzhao, Jiao Baoqian: "the legal hermeneutics", China University of Political Science and Law press, 2006 edition; Chen Jinzhao: "the legal hermeneutics: vertical Field, principles and methods ", Hunan people's publishing house, 2009 Edition; Chen Jinzhao:" the Legal Hermeneutics -- right (power) publicity restriction and method "(Contemporary Theory of Law Essentials Series), Renmin University of China press 2011 edition; Jiao Baoqian:" the legal argumentation: thinking and methods ", Peking University press, 2010 Edition; and Wang Liming:" the law introduction to Hermeneutics -- from the perspective of the civil law ", Law Press, 2009 Edition; Wang Liming:" law "(twenty-first Century higher education law series of excellent teaching material), Renmin University of China press 2011 edition; Wang Liming:" the methodology of jurisprudence ", Renmin University of China press, 2012 edition.

[23] pull on the philosophical hermeneutics to discuss the legal interpretation and legal methodology is Chinese law another take the words too literally error. The two actually has nothing to do, the most crucial point is, legal interpretation always has a clear purpose, and hermeneutics must reject the goals, first text in hermeneutics,, in the legal interpretation, is to first, the supremacy of illegally. This is why Gadamer refused to hermeneutics is the hermeneutics method. Gadamer: "truth and method", Hong Handing's translation, Shanghai Translation Publishing House, 1999 edition. Posner also pointed out, explain the theory to explain what the law did not help. Because interpretation is always relative to the objective, but the purpose is not explained by the process itself is given, but brought from outside and guide interpretation. Two is to explain the theory of consciousness, improve not explained, just as the linguistics may not improve one's reading ability. Interpretation is a natural, intuitive, "instinctive" activities, and not to comply with the rules of the activity. Look, Richard A. Posner, Law and Literature, 3rd ed., Harvard University Press, 2009, pp.274-276

[24] example, Kong Xiangjun: "the legal methodology" (3 volumes) published in 2006, the people's court.

[25] "to accelerate the pace of reform of adjudicative document...... The reform should focus on strengthening the testimony of the disputed evidence analysis, certification, enhance the reasoning judgment......". "The people's court reform for five years," load "the Supreme People's Court of the people's Republic of China in 1999 6 bulletin", pp. 186-187.

[26] Sun Xiaoxia: "for example, skills and ethics" legal family, legal research "carrier" in 2001 fourth; Sun Xiaoxia, Ying Yonghong: "difference" of judges and politicians thought, load "law" in 2001 ninth.

[27], for example, Zheng Chengliang: "the idea of the rule of law and legal thought," Journal of social science of Jilin University "carrier" in 2000 fourth.

[28] for example, Lin zhe: "Introduction" legal thinking, Shandong people's publishing house, 2000 edition; Wang Zejian: "the legal thinking and the civil case", China University of Political Science and Law press, 2003 edition; engen Shi: "Introduction to legal thinking", translated by Zheng Yongliu, Law Press 2004 edition; Jiao Baoqian: "the legal argumentation: thinking and methods", Peking University press the 2010 Edition; since 2002, China University of Political Science and Law Press published Ge Hongyi editor, the annual publication "a series of legal method and legal thinking". The note 21 cited the methodology of jurisprudence or legal interpretation works mostly with the legal thinking about. The thesis is about legal thinking more, in addition to the first 25 and 26 by Sun Xiaoxia and Zheng Chengliang, and behold, Dong Yuting, Yu Yisheng: "legal justice context thinking", "social science" carrying fifth 2008 China; Li Yingsen: "legal person's thinking characteristics," carrier "Journal of Henan University (SOCIAL SCIENCE EDITION)" in 2006 sixth; Chen Jinzhao: "legal thinking and its significance for the rule of law", "law and business studies" carrier in 2003 sixth; Chen Jinzhao: "Reflections on 'the judge thinking' -- to judge writing experience as the background", "Journal of Henan Institute of Political Science and Law" carrier in 2008 sixth; Chen Jinzhao: "norms retreat" legal thinking of "law", carrying Chinese 2012 first; Shi Xuzhai: "legal thinking is the basic character of the legal person" should be "Tribune", set in 2007 fourth; Liu Zhibin: "legal thinking: a perspective of occupation", "the science of law" contained in 2007 fifth.

[29] example, Chen Ruihua: "the legal person's way of thinking", Law Press, 2007 edition. This is the author of an academic speech corpus; "legal person's way of thinking" is just one speech, explain the legal person or legal person why use such professional concept, there will be legal maxims such, so put forward or inference problems, the author explain indicate this is a formal legal system requirements, implicit weighing system interests, contribute to the legal new learning laws, but can't see much relations between the person and the legal person or group thinking.

[30] "the biggest characteristic legal community is everyone has roughly the same way of thinking and thinking ability, which we call the law thinking. When the judiciary truly become a member of legal community, he will gradually according to the law of human thinking mode to analyze and solve problems, his interpretation of the law of nature and the legal community to explain the same or similar." Dong Yuting, Yu Yisheng: law "judicial context thinking", supra note 28, sixty-ninth.

[31], for example, Zheng Chengliang said: "in a society, the rule of law can be successful, public decision-making directly depend on the social and private decision makers are generally accepted concept phase and the rule of law to adapt to the way of thinking, can according to this way of thinking to form expectations, take action, evaluation is not, whether always willing to admit and respect the way of thinking in accordance with this problem on the conclusions, especially in such conclusions and their wishes, plans and interests." Supra note 27, sixth pages.

[32] Zheng Chengliang, supra note 27, pp. 6-10.

[33] Dong Yuting, Yu Yisheng, supra note 28, pp. 70-71.

[34] Li Yingsen, supra note 28, pp. 84-85.

[35] American justice Jackson 1949 first expression, Terminiello v. City of Chicago, 337 U.S. 1 (1949); after justice Gord Berg 1963 in a case repeated this expression, Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). And behold, Posner: "not Dutch act contract: in a time of national emergency constitution", Su Li translation, Peking University press, 2009 edition.

[36] Posner: "jurisprudence issues", Su Li translation, China University of Political Science and Law press, 2001 edition; Posner: "above the law", Su Li translation, China University of Political Science and Law press, 2002 edition; Posner: "the law, democracy, and pragmatism", translated by Ling Bin, China University of Political Science and Law press, 2003 edition; and, Posner: "how judges think", Su Li translation, Peking University press, 2008 edition.

Of course, some lawyers do [37] "thinking and reasoning than others well, but in this case the surgeon, accounting and social workers also have. Many lawyers may analysis, many ordinary people more than fine, or strict, too many economists, scientists and investment banking business." Schauer, Thinking Like A Lawyer, supra note 5, pp. 1-2. Also see Larry Alexander, and Emily Sherwin, Demystifying Legal Reasoning, Cambridge University Press, 2008

[38] Sun Xiaoxia, supra note 26.

[39] Frank H. Easterbrook, "The Supreme Court, 1983 Term-Foreword: The Court and the Economic System," Harvard Law Review, vol.98 (1984), p.4

[40] "American side declared: the America recognize that, in all Chinese Taiwan Strait maintain there is but one China, Taiwan is a part of the Chinese. USA government does not challenge that position." "Joint Communique", "people's Daily" carried in February 28, 1972 first edition.

[41] about natural science, see, Karl Popper, Conjectures and Refutations: The Growth of Scientific Knowledge, Routledge, 1963; Thomas S. Kuhn, The Structure of Scientific Revolutions, 2nd ed., The University of Chicago Press, 1970; about social science, then analysis of economic theory, and to see Milton Friedman Milton Friedman, "The Methodology of Positive Economics," in Essays in Positive Economics, University of Chicago Press (1953), 1970, pp. 3-43

[42] this is the philosophical sayings, Wittgenstein emphasizes that observation, rather than by reasoning. Wittgenstein: "philosophy", Li Bulou translation of Chen Weihang school, the Commercial Press, 1996 edition, page forty-seventh.

[43] Li Yingsen, supra note 28, eighty-fifth pages.

[44] can see, Posner: "how judges think", supra note 36, especially chapter fifth.

[45] Su Li: "sending law to the countryside" -- Study on China grassroots judicial system, Peking University press, 2010 edition, especially the fourth, the 8 chapter.

[46] Posner: "how judges think", supra note 36, the Eleventh chapter.

[47] Edmund Ursin, "How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking", Buffalo Law Review, Vol. 57, (2009), 1270

"The [48] The Legendary Swordsman Invincible Eastern" (Tsui Hark / Brigitte Lin / Jet Li, director, starring in the back); "Wulin rumored" (Yan Ni, Sha Yi, Chen Yao / in) Tong Xiangyu said.

[49] German judge said: "Professor (involved in the trial and) need to be especially careful, Dean Professor; often write particularly lengthy judgment, stresses the theory system". See, Song Bing: "procedure, justice and Modernization -- foreign jurists in China's speeches", China University of Political Science and Law press 1998 edition, page thirty-third.

[50] Vandevelde, Thinking Like a Lawyer, supra note 5, p.235

[51] February 19, 2012,Http://weibo.com/lizhuangcn.

[52] Oliver Wendell Holmes, Jr., "The Path of the Law," Harvard Law Review, Vol. 110, No. 5 (1997)

[53] Marx: "theses on Feuerbach", "Marx selected works of Engels" (first volumes), people's press, 1995 edition, page fifty-seventh.

[54] the emphasis is very important, because some seem to rule behavior was perfectly rational choice of interests. For example, the old society widow to feast, actually is the result of multiple social system, including the recognition of the society in various ways. The army "obey orders in all actions" is also so, no unified command with military action is more likely to be defeated, successful unauthorized actions will therefore also received such as warned that such punishment.

[55] Max Weber, Economy and Society: An Outline of Interpretive Sociology, Vol.2, University of California Press, 1978, pp.954-956, 973-978

[56] Zhang Xipo: "Ma five trial mode", Law Press, 1983 edition.

[57] Leonard Baker, John Marshall: A Life in Law, Macmillan, 1974

[58] "Bible Old Testament kings", chapter third, section 16-27.

[59] Ian Loveland, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction, 5th ed., Oxford University Press, 2009, p.87

[60] Marbury v. Madison, 5 U.S. 137 (1803)

[61] see, Su Li: "the system is how to form?" Comparative study on load "," 1998 first period, and 1 references cited.

[62] example, the verdict is obviously essential before the program, first discuss the nature of the problem, and finally discusses the Jurisdiction -- a program -- problem; if the case; legitimacy are many doubtful points of the case, judge Marshall of the trial is the legal dispute and trouble left him his administrative work errors; it never to parties Marbury rights and obligations as the clue, the opposite didn't Marbury rights too seriously; it actually begins with a conclusion -- denounced President Jefferson but not on the spot, so no jurisdiction and node case; of course this decision must be fine political trade-off; the decision also is not to look at the past great, but created a precedent for judicial review -- only for the future is to create, for the past the called end.

[63] "different, do not plan (" the Analects of Confucius, "Duke"); "no debate, is an invention of my. Don't argue, is to have more time for "(Deng Xiaoping" selected works "(third volumes), people's publishing house, 1993, page 374th). Also see: "in the past four centuries, the insight to this point but also to expand the. A prominent feature of modern experience is, in relation to the meaning of life and about some deep moral, even to discuss all show common, its natural tendency is not consensus, but controversy. These things are more, (sometimes even and our own), the greater the differences. When the seemingly agreement, it may be misunderstood each other, or people talk together was not long enough, not deep enough." Charles Larmore, The Morals of Modernity, Cambridge University Press, 1996, pp.168-169

[64] Feng Xiang: "good lawyer can is good", "notes" of politics and law, Jiangsu people's publishing house, 2004 edition, 160th pages.

[65] such as media reports, in 2009, a court verdict expression "temporary or intended crime" into a "temporary rape", fry raise a Babel of criticism of. See.Http://news.qq.com/a/20091102/001485.htm.

[66] Wittgenstein: "philosophy", supra note 42, pp. 17-18.

The [67] judge Posner has cited USA federal appeals court judge Wald (Patricia M. Wald) and the Federal Supreme Court justice Jan Quist's experience, can see, Posner: "how judges think", supra note 36, the 5, eighth chapter 81.

[68] from Platon, Aristotle have discussed this problem. See, Posner: "beyond the law", supra note 35, the twenty-fourth chapter; Su Li: "rhetoric and house", "open" load times in 2011 second.

[69] 2010 late on the night of October 20th, Xi'an Conservatory of Music student Yao of a hit and run, the injured Zhang Miaoci caused the death of six knife. After the scandal, affected by the media, the public response was very strong, Yao has to surrender the extenuating circumstances, in the strong social pressure, Xi'an City Intermediate People's Court of First Instance judgement of the Yao's death, Shaanxi Province Higher People's Court of second instance also maintain a death sentence.

[70] can see, "those who play with fire Zhang Xian",Http://www.infzm.com/content/71049"; Yao Qingwei v. Zhang Xian tort awarded 1 yuan the micro-blog apology in January not to remove",Http://news.cntv.cn/2012/07/31/ARTI1343722109775237.shtml. In addition, Yao with sister micro-blog Post said, if she is Yao, will kill the wounded, the extreme argument also stimulated the anger of public opinion.

[71] this includes 1 defense lawyers, "passion homicide" Yao defense, from legal language translation, this is good, but in the Chinese regular words, only legitimate passion is "passion", not just is the "beast attack", neutral is "impulse", perhaps the defence lawyers said the impulse to kill people, will avoid misunderstandings and weaken its reaction; about 2 to show Yao's human error, CCTV play Yao show party for the new year in prison, let people feel "which is punished", more likely to believe that "the official two generation", "two rich generation" rumor; 3 hospital in Xi'an trial improper invited medicine Xin school of Xi'an Conservatory of Music and Northwest University of Politics and Law students hearing as a "jury", this one will be beneficial to the Yao's system arrangement results defiled the "jury" opinions, it cannot be used in the decision in 4 lawyers and courts; and the lack of experience, the in order to prevent the excessive influence of public opinion and the judicial trial to prolong the period or delay the court trial in the court over speed, have been legally blind About passion; 5 Shaanxi High Court and Supreme Court lack sufficient political wisdom and moral courage to assume their judicial duties.

[72] Gustav Bon: "a motley crew: Study of the popular mind", translated by Feng Keli, Westview press, 2003 edition.

A typical event [73] is the Jiangsu Jingjiang court to disrupt the court as the detention of lawyer Wang Quanzhang, caused some law do not understand not to understand the lawyer law under the premise to directly comment.

[74] Su Li: "once the judicial insight", "reading" in 2007 fourth period load.

[75] Su Li: "'Harry theorem' economic interpretation of" carrier ", China social science" in 2006 sixth.

[76] is the most typical and influenced many people the impression about Harry Huang Renyu book, "Wanli fifteen years" (Revised and enlarged), Zhonghua Book Company, 2007.

[77] "law and economics has changed the whole field of law. Now, we are all legal economists!" Lawrence Lessig, "The Prolific Iconoclast: Richard Posner," The American Lawyer (December, 1999), p.105

[78] 2011 year in May 10th, vice president Zhang Jun, deputy secretary of the party, the supreme law said in the national court criminal trial work of the Forum: "should not only understand the criminal law amendment from the context (eight) regulations, as long as the standard to drunk driving a motor vehicle, it will constitute a criminal offense." He cited the general rules of the criminal law article thirteenth: "harm the social behavior plot remarkable slight harm is not great, not deemed a crime".

[79] 2013 year in February 20th the State Council executive meeting identified five projects to strengthen the real estate market regulation and control policies and measures (commonly known as "new country five"). In March 1st, the general office of the State Council issued the "notice" on the continuation of the work of real estate market regulation, refinement of the "country of five", second "specific measures to resolutely curb speculative investment purchase" is: "stipulated in the tax, housing and urban construction departments should cooperate closely, on the sale of owner occupied housing in accordance with the regulations should be imposed personal income tax, the tax collection, housing registration history information to verify the original value of housing should be in accordance with the law, strictly in accordance with the income from the transfer of 20% assessed." This measure has aroused public attention.

[80] look, Shi Yanjun, Cao Yi: "the buyer to sing '20% tax' monodrama" carrier ", international finance news" in April 22, 2013, fifth edition.

[81] Zhang Guo: "Tianjin: before marriage Housing thin", "Youth Daily" Chinese contained in April 3, 2013 fourth edition.

[82] Yang Hongyang, Wang Chen, Zhou Kai: "divorce avoidance may lose both men", "Youth Daily" Chinese contained in April 3, 2013 fourth edition. Financial network: "the high court of Jiangsu real estate deal behavior: avoid suggestions against false divorce may lose both one's money and life",Http://estate.caijing.com.cn/2013-04-03/112642703.html? _fin.

[83] CCTV.com: "Yao before his plans to donate corneas, Zhang Miao father called sympathetic to their parents",Http://news.sohu.com/20110815/n316333734.shtml.

[84] 2009 year in May 16th, the 19 year old woman with Wang fly out after the rape of Yunnan province Li Changkui villagers, after the woman and her 3 year old brother Wang Jiahong to kill, extremely vicious; July 15, 2010 verdict death penalty; in March 4, 2011, the Yunnan high court adjudged Li Changkui death. The victim's father Wang Tingli to the provincial procuratorate application, also appeal to the high court, hope the provincial high court starting retrial procedure, commuted the death sentence; also to the provincial Party committee, even the Central Committee, the Supreme People's court, procuratorate have submitted the application form. The Supreme Court of Yunnan province two trial sparked a nationwide debate. In August 22, 2011, the Yunnan Provincial Higher People's Court of second instance court to revoke the suspended death sentence commuted the death penalty, Li Changkui.

[85] Yunnan province high court vice president in answer to people questioned think, "this case after 10 years is certainly a benchmark, a typical". Liu Ziyu, Level Vice President: "Yunnan High Court: not at the carnival style sentenced 1 people to death in public",Http://epaper.xkb.com.cn/view.php? Id=708807.

[86] He Weifang: "judicial how error correction",Http://china.caixin.com/2011-08-16/100291506.html.

[87] He Weifang: "Nie Shubin case, the Supreme Court shall not be re shuffle",Http://www.infzm.com/content/63324.

[88] Zhang Qianfan's blog, then delete; but please see,Http://bbs.tiexue.net/post2_4885637_1.html.

[89] Richard A. Posner, Public Intellectuals, A Study of Decline, Harvard University Press, 2003, p.167; Su Li: "meet Hamlett", "reading" in 2002 fifth period load.

[90] Nietzsche. Friedrich Nietzsche, Beyond Good and Evil, Prelude to a Philosophy of the Future, trans. by Judith Norman, Cambridge University Press, 2002, pp.5-6

[91] Max Weber, Economy and Society, supra note 55, pp. 809-811818. and see, Roberto Unger, Law in Modern Society: Toward A Criticism of Social Theory, Free Press, 1976, p.66; Sally Ewing, "Formal Justice and the Spirit of Capitalism: Max Weber 's Sociology of Law", Law & Society Review, Vol. 21, No. 3 (1987), pp. 487-512; Duncan Kennedy, "The Disenchantment of Logically Formal Legal Rationality or Max Weber' s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought", Hastings Law Journal, vol.55, 1031 (2004)

[92] Posner think, judge the best understood as the work in each case to obtain the specific circumstances of the most reasonable results, although not completely go to "judicial legal requirements results in A, but the B political sense, so we decided to B" step, but also can not be considered political consequences; he also points out an important decision "American Federal Supreme Court case is mainly based on the Bob Lin" political considerations (Posner: "jurisprudence issues", supra note 36, 165th, pp. 183-184). Cardoso had agreed or at least recognized cited the famous French jurist Sall Lys (Saleilles) claims "the judge from the beginning of the results, and then he found the legal principles, and all legal interpretation are so (Benjamin N. Cardozo, The Nature of Judicial Process, Yale University Press, 1960, P. 170); and see, Rene David:" the main contemporary legal system ", paint bamboo translation, Shanghai Translation Publishing House, 1984 edition, page 117th.

[93] Posner talked about his book "how judges think" the title "justice". See, "the judge how to think", supra note 36, pp. 6-7.

[94] "near far less blame" ("the Analects of Confucius Yang goods"), so in an abstract sense, "punishment unknown, Wei unpredictable" ("Zuo Zhuan" Zhaogong six years) is meaningful.

[95] Guo Guangdong: "'it is stable, even is the level is not high, all right.' the balance of interests and justice seminar for judges social evaluation puzzle", "Southern Weekend" June 25, 2009 load. It is said that this is the former Zhejiang High Court of the Shanghai high court, Dean should brave general, questioned by some legal terminology like legal scholars. But I think, this is China people understand the words, and some serious and facetious at the same time, the China especially gist in court: must solve real social problems and contradictions, we must properly consider reasonable demands and balance, and to promote social harmony and stability.

[96] 1995 years, the court system in undergraduate education accounted for only 6.9% of all the judges, until 2004 only 51.6% (Zhu Jingwen, Zhang Zhimei: "Chinese legalization process data analysis", "Guangming Daily Load" in February 19, 2008 eleventh edition). High degree will be mainly concentrated in the high courts and Supreme Court; even in grass-roots court (China, 3000), but since the age of 1980 after the CPC leadership on each level and each unit has required knowledge, is actually a diploma and degree, have mandatory, if the leadership is not bachelor's degree graduate, will not be approved, so it could be concluded that almost everyone has taken leading positions, is responsible for administrative and management, not the actual trial.

[97] see, supra note 29.

[98] for example, Cheng Liaoyuan: "'legal' Governance: 'government' subjective interpretation of the" carrier "," Journal of Southwest Institute for Nationalities (PHILOSOPHY AND SOCIAL SCIENCES) 2001 twelfth period; the legal person: "city", Shanghai Sanlian Bookstore 2003 edition; Sun Xiaoxia: "legal person governance the China: legal occupation thinking", China University of Political Science and Law press 2005 Edition; and this is often "rigorous" law people name says translation, Mary Ann Glendon: "law people under the rule of the country", Shen Guoqin, translated by Hu Hongyan, China University of Political Science and Law press, 2010 edition.

From the engineer to rule of law is the legal person is increasingly popular in recent years (see, Wang Xiaodong: "the country to civilian rule engineer", "green" contained in 2010 seventh), and the fall of 2012 18 National Congress of the CPC, Chinese "farewell 'engineer law'" (Zhang Jie: "farewell 'engineers rule,'" abstract of Finance and economics "carrier" magazine in 2012 12), along with the increasing of the law school graduates to enter China high-level political, legal person has shown's excitement.

[99] Friedrich Nietzsche, Gay Science, ed. by Bernard Williams, trans. by Josefine Nauckhoff, Cambridge University Press, 2001, pp.110-112, 151, 110th, 265. Also see Nietzsche, Beyond, Good and Evil, supra note.

[100] Posner in his "anti monopoly law" (The University of Chicago Press, 1976) in the preface to the first edition is called "in the relevant collusion, merger, the exchange of information between competitors, limited competition, monopoly, product distribution and resistance in antitrust doctrine of other traditional fields to make some fundamental changes", and "obey the rules to obtain antitrust criminal and other relief on some fundamental changes in the pursuit of". 25 years later, in his second edition (2nd ed., The University of Chicago Press, 2001) in the subtitle "from an economic perspective," and in the preface explains, because now no other view.

[101] Feng Xiang, "The End of Intellectual Property", International Critical Thought, Vol. 2, No. 1, March 2012, 99-106

[102] according to the Beijing Municipal Local Taxation Bureau "on individuals through the network of virtual currency sales revenue levy personal income tax issues from the", October 29, 2008, the State Administration of Taxation issued "on individuals through the network of virtual currency trading revenue levy personal income tax issues concerning", clearly defined, individuals through the network of virtual money to buy game player. After the increase, to the sale of income, personal income tax, shall pay individual income tax in accordance with the "transfer of property income" project calculation rate is fixed at 20%. Provisions of the State Administration of Taxation, personal selling virtual currency the original value of the property, paid for the acquisition of virtual currency price and related taxes and fees. For individuals unable to provide original value of the property certificate, determined by the competent tax authorities the original value of the property.

[103] Posner: "not Dutch act contract", supra note 34.

[104] Holmes, "John Marshall," with 4, P.208

[105] is not fun, it ratified as many subject identity. For example, Holmes thinks, the law but to judge how well the predictions will be facing a behavior in specific cases (Oliver Wendell Holmes, "The Path of the Law," 10 Harvard Law Review 457, 4611897); and Posner thought that "something of legal and illegal officers found; but a name for their activities. Judge not according to the known as the "legal" things in action, they are just as good as possible action "(" jurisprudence issues ", supra note 36, P. 283). And behold, Kuhn on the definition of Science (Thomas S. Kuhn, The Structure of Scientific Revolutions, 2nd ed., University of Chicago Press, 1970), is a community of science on the basis of their shared paradigm and defined as the scientific work; and Kos are discussed in the relevant economics (Ronald H. Coase, How Should Economists Choose? American Enterprise Institute, 1982) implicit on the definition of Economics: a discipline boundary not by definition, it is decided by a competitive process; and therefore, Posner think, in this way, the definition of economics Kos is actually "economists than others do better business", although it depends who or what is the problem with economists (Posner: "above the law", supra note 36, P. 485th).

[106] "jurisprudence issues", supra note 36, 140th pages.

[107] Posner, Law and Literature, supra note 23, pp.345-346

[108] "jurisprudence issues", supra note 36, 564th pages.

[109] is American law recognized the most is the ability of the four chief justice Marshall, Taft, Hughes and Warren are good at administration; before serving as chief justice, they have been very important administrative positions of leadership or exhibit excellent management skills: Marshall is the Secretary of state, Taft was president, Hughes served as the vice president and the Republican presidential candidate, Warren was the governor of California. See, Henry A. Abraham, The Judicial Process, An Introductory Analysis of the Courts of the United States, England, and France, 6th ed. Oxford University Press, 1993, pp. 56-58, table II. Also see related Warren judge how in the case of Brown (Brown v. Board of Education, 347 U.S. 483 (1954)) won the unanimous support justice through its outstanding statesman charm and ability of David M., O 'Brien, Storm Center, The Supreme Court in American Politics, 7th ed. W. W. Norton & Company, 2005, CH5

[110] Oliver Wendell Holmes, Jr., "Natural Law," The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr. ed.by Richard A. Posner, University Of Chicago Press, 1997, p.180

[111] William Butler Yeats, Per Amica Silentia Lunae, Macmillan, 1918, p.31

(this article published in the "Harvard Law Review" fourteenth volumes of second series (2013))