Shen Zongling: the rise of the critical legal studies in America
Created:
/Author:
Aaron Lewis
Shen Zongling: the rise of the critical legal studies in USASource: "comparative study" in 1989 second Since the end of 70's, a known as "critical movement (Critical
Law Studies
Movement, referred to as CLS) thoughts began to appear in the USA law, after rising, is still unabated.From the catalog publications USA law 80's point of view, in the relevant jurisprudence, philosophy of law, the theory of legal aspects of the thesis topic, the critical legal studies to occupy the first place, at the same time, American some famous law school has held a number of critical legal symposium, some law institute set up critical legal course.According to the commentary pointed out, the main representative of this trend from some famous university, especially Harvard University, Stanford University law school, most of them younger, more committed to and good at communication of his doctrine, this movement will not fleeting (2).This idea in USA has affected the law after the rise of the other Western countries.(http://www.tecn.cn) Properties of the critical legal studies, is generally considered the "modern law theory and practice in the left movement" (3), "the trend of academic field of law" (4).Strictly speaking, the critical legal studies is not a school, but a group of different opinions but to criticize the orthodox legal thought for the characteristics of the left-wing jurist (mainly the younger generation jurist).The modern western society in the "leftist" refers to a more radical political tendency.(http://www.tecn.cn) On political or theoretical tendency terms, these critical jurists generally can be divided into three categories.The first kind is anti formalism left-wing jurist, including Harvard University professor Duncan? Kennedy (Duncan
Kennedy) and Roberto Unger (Roberto? Unger) et al.The second kind is the new Marx, jurist, including Modun? Horwitz (Morton
Horwitz), a professor at Georgetown University Law Center Mark figure what? Nate (Mark
Tushnet) et al.The third category is not belong to the above two types of leftist lawyers, including Robert? Gordon (Robert Gordon) and William Simon (William
Simon) and others?."The new Marx doctrine", or "the Marx doctrine", usually refers to a school in the western developed countries, Marx.(http://www.tecn.cn) Not only is this critical jurists in three, and within each class of critical jurist, everyone have their own characteristics.Nevertheless, all critical jurists have some common characteristics.First, as indicated above, they belong to the left in the political tendency.Second, the law is the "orthodox" legal thought of criticism and challenges.The orthodox legal thought it said, is "liberal" or "Legal Thought Freedom Law" (liberal
legalism).At the same time, it is considered to represent the law's thought of liberalism in the history of the British 17~18 century thinker, scholar Rock (Locke), Hobbes (Hobbes) and Blackstone (William
Blackstone) et al.But the real critical jurists criticizing contemporary USA some jurists, authority such as Ronald? Dworkin (Ronald
Dworkin) and Richard? Posner (Richard Posner), and has great influence in the field of law philosopher John? Rawls (John
Rawls) et al.Third, the critical legal criticism not only directly related to ideology, legal system, but also extended to other fields of thought, especially the theory of sociology, political issues.Therefore, some people think that, the critical legal studies is a "political movement" (5), some said, "law of criticism to reform.Its purpose is to change the world, to achieve a value."6.(http://www.tecn.cn) On the critical legal thought origin theory, some believe that from traditional historiography in progress America 20~30 (such as C. Beard's book "American constitutional economic interpretation") and legal realism American's (7); some think from the German M. Weber's social theory, structuralism and phenomenology; some think from Marx (8).(http://www.tecn.cn) Because of the characteristics of the critical legal Public opinions are divergent., based on the review of the law for the time being to some main viewpoints of Three Representatives as the representative. One, Duncan? Kenny through the analysis of the representative works of Blackstone Duncan? Kennedy in 1978 published an article entitled "structure" Blackstone's interpretation of the book < > long, on behalf of the eighteenth Century British famous jurist Blackstone as "English law -- Interpretation" (published in 1765 ~1769, in USA revolution in Britain and USA also sold, on America accept British law tradition is of great significance and has spread, some countries in the West have been Germany, French, Russian translation) -- a critical analysis of.In a certain sense, Duncan? Kennedy, this article is an important symbol of critical legal studies began to appear in the America.(http://www.tecn.cn) Duncan? Kennedy first pointed out, jurists to classification, analysis and interpretation of the rule of law in general, for two reasons, one is to find the condition of realizing social justice; the second is to deny a truth, that is reality to our relationships around the world in a painful sense of contradiction.But before a motivation is an illusion; a motivation is an excuse (apology) methods, which attempt to make both rulers and ruled the mystery, so that they believed in a state of slavery "natural", "freedom" and rationality.His article focuses on second problems with motivation, attempting to deny the allegations and motivation.He thinks, this problem is concerned, Blackstone's book deserves special attention.For the first, he was a key figure in the liberal model America legal thought, his theory in the UK for the first time by academic form makes the status legalization.Second, he put forward some people is not new arguments and categories within a larger structure is quite familiar to modern readers.Third, his book is particularly difficult to convince.Despite the many contributions to his utopian legal career, but the "structure" Blackstone "interpretation" a book a book, generally speaking, is the social phenomenon of "pure natural".Thus, Duncan? Kennedy tries to criticize the Blackstone's Book Critique of contemporary USA of law's thought of liberalism dominance.(http://www.tecn.cn) Duncan? Kennedy to analyze people attempt to deny such a truth: that is contradiction on interpersonal relationship painful feeling, so he further analyzes the basic contradiction between people in interpersonal relationships "".He thinks, American legal culture makes people believe, the freedom of the individual goal realization must rely on social compulsory behavior and it is not compatible.Other people (family, friends, government officials, people, culture bound state) is necessary, they make us who we are, and at the critical moment to protect us against the destruction, but in the construction and protection of us at the same time, other people (family, country) and extinction in order to threaten us, will be a one is obviously worse instead of better mixed form imposed on us.What we experience in the society the price of freedom is the consistency of countless, give ourselves completely to give others.This is costly.In short, this is the basic contradiction "is not only the relationships with other people for our freedom necessary and incompatible."(9) the contradiction not only strongly exists and is omnipresent.First of all, this is our experience an aspect of every kind of social life.We and the lover, spouse, parents, children, neighbors, employers and employees, partners, colleagues and so on, have this relationship.Secondly, in the law, this is not only an aspect, and it is essential to every question.The legal content of any legal issues will be directly related to the collective force.Unless everyone at least have imagined he can resort to
national force, otherwise it would not have legal problems.(http://www.tecn.cn
) Duncan? Kennedy think, why offspring legal thinker would long experience not to arrive or not admit this basic contradiction?The reason is that there are a harmonic (mediation) or deny (denial) activity, they play this basic contradiction to conceal or disguise the role of legal thinker.In the legal thought, this mechanism to deny there are several mode.(http://www.tecn.cn) (1) maintain balance (balancing) activities.This is the contradiction as some conflicting values and they must be kept balance. (2) (functionalism) and functional formalism (formalism) two kinds of mode.They were speaking in front of the balanced activities more false.Functionalism is that people assume that must be fulfilled the task in social organizations, which determines what the collective behavior is legitimate.Formalism is a system of thought, it is confirmed that some collective intervention in the form of, for example, that the execution of the contract to defend private property, protection of personal freedom and so on.This confirmation to make some rules legalized, or make some other rules of illegal chemical (e.g. announced the minimum wage legislation violated the freedom of contract).That is to say, the formalism with balance and functional similarity, is that it allows us to deny the existence of the contradictory feelings, is the appropriate cases must have a collective, and this situation can be determined through rational analysis of the content of the legal rules.(http://www.tecn.cn) (3) category design (categorical
schemes).It refers to the classification of the different situation of the collective force.Category is closely connected with the legal reasoning.The use of legal reasoning jurists create category model.The legal system cannot do without the categories.No category this abstraction method, we can not grasp the thousands on thousands of special circumstances.At the same time, the category of building is a social project, is experienced many centuries caused.Therefore, it is to be above.But on the other hand, all of these categories is a lie.For example, the dichotomy of contract and tort theory, the generations means such a kind of meaning: in the "private sector", as long as compliance with a set of enforced by the state, but the basic moral standards prescribed by the rules, private would be free to establish a relationship.And as the public law and private law is to repeat the tort and contract the two opposition this hidden meanings: the state is detached from the civil society, not involved in personal relationships.(http://www.tecn.cn) Duncan? Kennedy also think that, various modes of harmonic or deny the basic contradiction can be collectively referred to as liberalism.Liberalism was originally a revolutionary political rather than legal thought.After passing through the "structure" Blackstone "paraphrase > a book and the book, liberalism has become a legal mode of thought.History USA culture in the history of legal thought is a liberal view of the law, which in nineteenth Century continue to abstraction and generalization.Until the beginning of twentieth Century, it has been constructed all laws, but eventually disintegrated.(http://www.tecn.cn) Freedom means that there are two diametrically opposite entity in people's imagination: an entity is civil society are not threatened free private communication fields, while another entity is national, it forces people to respect rights.Through the country, people will become involved in a good combination.The liberal model life will of course denies the existence of basic contradiction.(http://www.tecn.cn) As mentioned above, Duncan? Kennedy, one of the important motivation jurists to classification, analysis and interpretation of the rule of law is denied and excuse.About denied motivation, above has been introduced.He thinks, deny or harmonic is not necessarily justify.This factor is needed for defense, deny or harmonic current social and economic order is a bias, as if we pass this way has overcome the basic contradiction, or think, to adjust the legal system slightly, we can achieve satisfactory state, because of this system is basically sound, only slightly repair be perfect, etc..But denied freedom law and basic contradiction and basic contradiction excuse free law is closely linked to."In the legal thinking of the people has been a member of the ruling class, behoove loyalty oath has been a core group permission to join the legal conditions."10.(http://www.tecn.cn) Duncan? Kennedy also pointed out, in the interior of liberalism, the source of the right and the judicial role often have different opinions.This is also the liberalism as one of the characteristics of a school.So, the natural law theory and positivism doctrine, Judicial Activism (judicial
activism, a translation of judicial activism -- editor) and judicial passivism (judicial passivism) all belong to the liberal tradition.(http://www.tecn.cn) Then, he focuses on the analysis of Blackstone's liberalism.In his view, the greatest achievement lies in that he would Blackstone's political slogan "liberal rights" into thousands of common law rules, which is a complex set of rules governing the country people daily contacts the compulsory execution.Blackstone did not invent the rights as the basic contradictions of the concept.This is John? Rock, seventeenth Century -- "Radicalism" and the declaration of the rights of revolution.However, if there is no such a person as Blackstone the right idea into technical, common law field almost forgotten, is extremely important, liberal theory may not be complete, the concept of rights can not be make out a good case.(http://www.tecn.cn) Blackstone was a remarkable achievement in seventeenth Century right view into the common law is the fault Act (Law
of
wrongs, also translated as "rights law" -- editor), which stipulates that countries can make what rules on private.Before him, the political theory didn't understand the common law, but the Blackstone has realized a leap.Future generations of jurists, including Britain's Austen (J.
Austin), Pollock (F. Pollock) and American Kent (J. Kent), Storrie (J. Story), Holmes (O.
Holmes) and Pound (R. Pound)'s works were written under his influence.(
http://www.tecn.cn) Blackstone on the origin of right and judicial action theory is one of his important contributions.He handled the origin of rights doctrine is: judges enforce the sovereignty will also maintain the natural law, independent of any human law for the transfer of rights based on.This view is certainly stultify oneself.But in the solution of liberalism and right mode of this major difficulty, this is the first extensive, serious attempt.After the debate is in his proposed the theory scope, but no one thinks that the theory is satisfactory statement.The results, some people think Blackstone is the extreme positivism, but others think he is an extreme natural jurists.Observation more people think that his theory is inherently self contradictory.But everyone thinks that his theory embodies a convenient starting point, because he tried to oppose Hobbes and the Rock two people's views into a single definition.Duncan? Kennedy, Blackstone since is to look at the whole legal rights and justice from the dichotomy perspective, therefore, he can be the technical rules of the common law, civil property tort and contract as directly from the property, personal safety, freedom of movement and other natural rights, so as to promote liberalism.But he is on the right and the judicial dichotomy is to state and its power.At this point, this dichotomy is an anti liberal (non liberal) and becomes an obstacle free thinker decades later to try to overcome.(http://www.tecn.cn) Two, Unger's social critical theory Roberto? Anggeeryin "modern social legal social criticism" (1976 Edition) one book.Duncan? Kennedy in his article also mentioned, the source of his thought is one of Unger's theory.Although some criticism of jurists and critics believe Unger position on the critical legal movement is "ready to accept either course" (11), significantly different from that of the general criticism of jurists, but also admits he still is the movement of "authority" (12).(http://www.tecn.cn) Unger put forward a theory of legal development in the "modern society": "in law from the customary law in the development of tribal society as bureaucratic method of aristocratic society; and then to the legal institutions of the free society; finally lead to post liberal social legal system.He thinks, each society by law shows the inherent secret how they make people together.But not the same legal conflict reflects the different ways to adjust human group."13.(http://www.tecn.cn) He thinks, Chinese law has experienced from the common law of the bureaucratic law, but never at the free society "legal system" level (14).What he said is a free society and free social legal system refers to the western capitalist or modern capitalist society law.In his view, free society citizens must fight for the rule of law but not possible.The assumption that society is the social conflicts in the Lu Li supervisor, but in fact, this one or that one tool as it has been in private interests confrontation and (15).He advocated, human should return to the customary law is an independent group of new go, that is a kind of "living law equality organization" (living
law).(http://www.tecn.cn) Unger's law of criticism of the system is discussed in his recent book "the critical legal movement" (1986).He started in the book points out, the critical legal studies from the left in the traditional modern legal thought.This tradition has criticized the formalism and objectivism.He also pointed out, "this formalism is not law usually refers to the form, namely that the positive solution to specific problems through deduction or semi deductive method.The formalism is engaged in and believe that it may be possible to use such a legal argument: it usually referred to the ideological, philosophical controversy is the opposite, it is a kind of relatively speaking analysis non political, it requires the system has established the basis of materials to the will to work, and has the power to make authoritative in the traditional range of speech.In a word, in his view, legal thought in the formalism is defending the current legal system for.(http://www.tecn.cn) He thinks, objectivism refers to such a belief: the authority of the legal materials, such as law, case law and recognized legal concept system, reflect and support human joint, the law is not only a product of chance and power struggles or improper pressure.The lawyer may wish to keep his formalism and avoid the objectivism.They felt it was better not to talk about interest group politics in legislation, but only on trial or specific people not involved in other professional work in the objectives, policies and principles.But it is obviously wrong, because the formalism must have at least some objectivism as a prerequisite.(http://www.tecn.cn) Unger proposed, criticism of formalism and objectivism is left law thought in traditional, but now the law of criticism is the traditional leads to a larger system of thought, the law and power and power struggles to make a new interpretation.Therefore, Unger describes his critique of the current formalism and objectivism.His direct object of criticism is American law now the two most popular theory.What he called a "law and economics", this school emphasizes to analyze the law from the angle of economy, by Stanford University professor Posner is founder, his masterpiece is "economic analysis of law" (1977), it is also called the "jurist" economic analysis, but the name of the American about this school works or courses in "law and economics".Another of what he called "the rights and principles of school".This school mainly refers to a kind of value to the New York University law professor Dworkin as the representative of the theory of law.Dworkin as "seriously right on behalf of" (1977), and emphasized the significance of the rights and principles.(http://www.tecn.cn) Unger think, the two school is the USA "the most influential and representative of law theory", in which each party by a group of standing on the edge of people advocating government power."Law and economics" focuses on the private law, which is said to be the actual needs of foundation and historical study of legal system, mainly to serve the political rights; "the rights and principles of public law school", which is said to be research in the legal system itself moral requirements, mainly for the core service of liberalism.The two schools are committed to "restore the objectivism and formalist stance" (16).(http://www.tecn.cn) He also thinks, "law and economics" market concept in different meanings, so as to find the real basis of the legal system of comprehensive development by sophistry means pretend, trying to find should play a leading role and the purpose of the policy and legal reasoning here."The rights and principles of school" through other means to achieve the same purpose.It advocates the moral symbol to find natural rights based on the basic concept of different legal departments.This can create and principles and rights for the law content.He also said sarcastically, of course, the principles and rights to a certain degree of flexibility, so as to be able to prove that "the rights and principles of school" is the current legal system justification rather than an irresponsible revolutionaries.(http://www.tecn.cn) The nineteenth Century law he will also "law and economics" and "the rights and principles to dilute the school", and in nineteenth Century the classical jurists and representative of desalination conservative social theory.All these theories are made to find the classic form of social life.Most of the historical American legal thoughts are trying to change the formalism and objectivism critical direction, is to accept some criticism, while retaining the original point of diminishing.The most obvious example is the twentieth Century USA legal thought in legal procedure (legal
process), system (institutional
role) and teleological role of legal reasoning theory.They are the modern law answered and developed.So it's easy to shake and crumble and appear wrong compromise as profound insights into the theory.(http://www.tecn.cn) Therefore, Unger argues, the formalism and objectivism critical, critical legal studies now must from criticism to construction.Therefore, he proposed to the criticism of formalism and objectivism and constructive achievements.He also pointed out, "structure serious transformation would be wise to understand this as the basis and focus spot transformation."(17) then, he from authorized Democracy (known as representative democracy) point of view the proposed reform as follows.(http://www.tecn.cn) First, government organization.He advocates, the main problems in this regard is the contradiction between the exercise of state power to limit and hinder the state power.To solve this contradiction is to how can both limit the state power but does not interfere with the country's reform activities.The specific measures are (1) increase in government departments; (2) the conflict between the numerous government departments should be in accordance with the principle of priority and authorized the electoral college to solve; (3) planning of the central government -- the ruling party should test its planning real opportunity.(http://www.tecn.cn) Second, economic organizations (market).He thinks, the western countries market system of democracy has two kinds of resistance to the representative, namely freedom and economic development.The market organization posed a threat to democracy and freedom.From the aspect of, it makes some fixed social status of people who have a right to other members of the society to a subordinate position.Whether individual or collective contract rights are not completely offset this dependence.The current economic system is in large part a menace to democracy.It allows for a relatively small group, because the control of the investment decision, on the condition of collective prosperity or poverty with discretion.At the same time, the dominant form of market organization in the hazard free also through a series of imposed force hindered the economic development.Therefore, the economic principle should be to build a rotation (rotating) capital fund, that is to say, the workers, technical staff in the general conditions prescribed by the central government organs, the temporary use of the capital.In different sectors of the economy with capital to cope with the interest rate will be the basic source of government finance.This system is for the purpose of more power than the current market system and more authoritative.The rotation of capital embodied in law is diversified comprehensive property.(http://www.tecn.cn) Third, right system.Right is and another system reconstruction of the field of parallel government organizations, economic organizations.The present form of the system to realize the authorization of democracy is that there are two major issues.One is the problem of immunity and dominion.Because the protection of individual depends on two aspects, one is the property of support, but it brings a threat, forcing some people in direct dependency status; on the other hand, is the political, civil and welfare rights, they do not threaten the problem mentioned above.That is to say, in his view, the property has dominion, and the political, civil and welfare right is a kind of immunity.Another big problem is the right and social.That people lack of legal principles and rights to know some areas of social life, and these areas were easily recriminations and assume the responsibility of environmental.But American accounted for the dominant right concept is that right is a right of discretion, their size is determined by the initial definition of rights is required.But the actual effect of the idea of rights with social life of participation and decision to others is a contradiction.Lawyers always believe obligations from each other will act unilaterally or national obligations.(http://www.tecn.cn) Unger thinks, in order to effectively solve the above two problems, namely, immunity and dominion and rights and social problems, the law must distinguish between four kinds of rights.The first is immunity.These rights are not controlled by the state, that person other organization, others infringed, almost absolute security rights.(political, civil rights organization, speech and participation rights) and enjoy the welfare rights belong to the right.They give the basic security of personal feeling, so that he can with the social conflict expanded without feeling threatened his safety.The second is to shake (destabilization) right.They represent the people have the right to request to break the established system and social practice forms.The third is the market power.They represent the right under certain conditions of social capital can be divided into two parts: requirements.Fourth kinds of joint rights, namely the right to participate in social life.(http://www.tecn.cn) Finally, Unger concludes, anti liberal constructive plan he proposed not deified, copy of the Republic of China, more than the current democracy with the opposition in the imagination of an odd synthesis.On the contrary, it represents a kind of "ultra liberal (Super
liberalism), it will be liberal about state and society, freedom and so on premise and a big ambition together, this ambition was to create a less alien (less
alien to a self) of the social world (18).(
http://www.tecn.cn) The critical legal studies three, new Marx doctrine On behalf of the new Marx criticism of jurists for general is about American legal history works, such as the transformation of American law Horwitz ", 1780, ~1860" figure what Nate "America slavery law, 1810 ~1860" etc..Here mainly reviews of Georgetown University Law Center Professor Tushnet recently published "critical legal origin and foundation" (19).This paper systematically reflect the new Marx doctrine America jurists, especially his views about the criticism of law.(http://www.tecn.cn) He thinks, the critical legal inheritance the rise USA 20~30's progress in many aspects of historical traditions and legal realism.Progress of the history of traditional ideas, understand the shortcut American history is to pay attention to the interest group plays the role, emphasizes the important significance of economic interests in politics, policy.Therefore, transformation American law of inheritance of this tradition, the new Marx doctrine of Horwitz ", in 1780 ~1860 year" (1977 Edition), by USA historians appreciation, will America historians most authoritative Bancroft (Bancroft) prize to the author of the book.But the book in the legal circle has been severely criticized.The book argues, America antebellum Court on behalf of the company, enterprise and industrial interests.In fact, in the late 40's, USA historian Hatz (L.
Hartz) and handling (O.
Handlin) already's works made a similar point, but the problem is that they say is the legislative policy represents the interests of enterprises, and Horwitz this book is the story of the court.Obviously, in the eyes of the orthodox jurists, people can say the legislation represents the interests of enterprises, but can not say that the court on behalf of the interests of enterprises, because the legislature (lawmakers) is different from the court (judge), former representative politics, which represents the law.Now with the previous criticism jurist but realistic jurisconsults, that there is no significant difference between politics and the law, they all emphasize the power relationship in employment relations and in the development of the law, but the important role of critical power relations jurists said refers to the non law caste system as the importance of American social issue orders left and right system.(http://www.tecn.cn) Legal realism of 20~30's law and the law American orthodox critically analyzes, then the orthodox jurists (including judges, lawyers) are assumed, they can rely on the abstract concept based as few as a decision of a concrete case, realist jurists believe that this assumption is unwarranted, because those concepts are abstract of, from those concepts can lead to different conclusions.At the same time, because of the social status of the different (such as employers and organized labor), people would not have a common understanding of the legal system.(http://www.tecn.cn) Tushnet thinks, the critical legal while inheriting a criticism of legal realism, the constructive plan but do not agree with the legal realism.He thinks, the construction scheme of the legal realism includes three aspects.The first is the policy analysis.Legal realism advocated, legislators, judges and lawyers should pay attention to some controversy in the interest relations, studies on this relationship is known as policy analysis, this view has become the American general legal thinking mode.The law school students in teaching evaluation of the course also often ask the teacher has not fully explore policy issues.(http://www.tecn.cn) But the law of criticism against this policy analysis.It concentrated attack as has been mentioned, at present in the America law extremely popular economic analysis, namely the law and economics school.The critical legal think, first of all, the law and economics school opposite, contract law and other legal rules and the distribution of wealth in fact, legal system has created a series of rights by property law, contract law, tort law and other rules, they constitute the wealth distribution pattern.If people want to choose the most effective rules of contract law, it should not be the distribution of wealth that is fixed, because the rule of law to choose itself provides the distribution of wealth.Secondly, the law and economics will policy analysis is expanded, which made the simple speculation on the objective world.Once again, the rule of law and the distribution of wealth, not only reflect the priority, to some extent, these rules form the priority.(http://www.tecn.cn) Legal realism second constructive proposal is accepted social value.Legal realism proposition, though jurists should not be an abstract conception of the law as the basis of judgment, but they still should pay attention to those accepted social interests, such as the promotion of human freedom and material welfare.For what interest should promote, people would have different views, but no one would argue that these values are not important.Thus policy analysis should be based on the widely accepted social value based.At this point, the critical legal objections in fact simply used the realism jurisprudence argument, namely: social value is so abstract that it can prove any decision, and even if what is social value itself also have different opinions.But the law of criticism still adhere to this view: even if people agree on social value, but they are social value lies in our social structure to produce the values that make its members of society.(http://www.tecn.cn) Legal realism third construction scheme is the method of the balance of interests, also known as the methods of legal analysis, it thinks that once all relevant interests and recognized social value has been determined, the decision maker should balance various interests to make proper decisions.Tushnet think, at this point, the critical legal studies proposed a simple answer: in our society, representative decision-makers class isn't enough to guarantee to provide realistic balance law required.(http://www.tecn.cn) Fig. why Nate also pointed out that in general the critical legal jurisprudence on realistic criticism, critical legal argument is not very convincing.The critical legal studies is the development thought, could not claim it is exactly sure.At the same time, the movement of the participants also all have different ideas.Therefore, he further representations to some views of his own.The special attention is paid to his views on the legal nature of the USA.(http://www.tecn.cn) He thinks, legal nature is now, or at least in the past is the main argument in law in question, the critical legal studies discussed at the beginning of the legal rules and the problem of power.For example, it considers.Although there are many strings attached, but the law is conducive to the capitalism.But then the dominant view is: there are many disadvantages of original views, mainly the following three points.First, because of legal realism the skeptical attitude, that the court does not come from the general rules.It is impossible to talk about what the problem of favorable legal system.Second, no one can prove, the legal system or an aspect of the whole legal system of capitalism is superior to other services.The specific rules of contract law in some states of the American can be considered for capitalism, but at the same the capitalist system, namely, in another state, there is a contrary rule.International comparison also indicates the existence of capitalist economic system can have a great difference in the legal system of the country.Finally, against the law is another argument in favor of Capitalism: the legal system is in fact to maintain capitalist rarely.The legal system only provides a framework, where can do business.The rule of law is to prevent unpredictable disaster insurance.His conclusion is: these argument requires critical legal correction earlier on the legal nature of the position.But he also pointed out that, the current situation is: "the critical legal studies have proposed an analysis scheme, but the scheme of power is not much progress."20.(http://www.tecn.cn) He also thinks, some critical jurists tend to "small decentralized socialism" (Small-scale
decentralized
socialism) (21).This tendency reflects the criticism of centralized large, capitalism.Of course, it is not a positive solution.But be sure, the realization of socialism political will is the end.In fact, in a socialist society, criticizes jurists criticize the importance of denying personal achievement and resistance mistakenly decentralization as material and spiritual development.(http://www.tecn.cn) Through the above the critical legal studies three representative viewpoints, Duncan? Kennedy Unger and figure what Nate's introduction, we can understand USA law since 70 time end up to one side.(http://www.tecn.cn) In general, America social life is relatively stable in the 80's..But the rise of critical law also clearly show that, even in this relatively stable conditions, some jurists, especially the younger generation, the legal system of the modern social system, America discontent.They require different forms of these systems, different degrees of change.The rise of this law, also enables us to present America capitalist democracy, especially in the "freedom of speech", "academic freedom" and other aspects of understanding the present situation.Analysis American law school forum or law journals can allow new Marx doctrine, the ruling class and the ruled class class, published calls for the establishment of socialism in some form or theory.With 50's "Mccarthy doctrine" popular when compared, apparently has a different.Of course, the relative stability of the situation and the capitalist system is inseparable.At the same time, even in this case, we can also see the fierce struggle criticism jurists with representatives of the current legal system of orthodox jurists or school authorities, such as individual new Marx criticism of jurists (especially Burke) by the school dismissal event.(http://www.tecn.cn) The critical legal studies is a relatively new academic thought, which relates to the field beyond the law, and extended to the fundamental issues of social, political, economic.Therefore, its theory, whether from the motion or representatives from some representative it's view, are hardly in-depth, system.Such as "ultra liberal" or "small scattered socialist" scheme at best can only say is these critical jurist I some kind of system for the future social discussion or assumption.(http://www.tecn.cn) The basic contradiction of capitalist society, is a very important and very complicated theoretical problem.No matter how we answer to this question, but Duncan? Kennedy analysis of this question is very difficult to satisfactory.As mentioned above, in his view, this is a basic contradiction: "is not only the relationships with other people for our freedom necessary and incompatible."In the author's opinion, freedom is of course an extremely high value of human beings, but in any society or to any person, freedom is not absolute.The 1789 "Declaration of human rights" stipulates: "freedom is the right to do everything which harm to others.Therefore, the exercise of the natural rights of every man, only to ensure that other members of the society the enjoyment of the same rights restrictions.These limits can only be determined by law."(fourth) similarly, 1982 China constitution also stipulates that the understanding of the socialist system of freedom: "citizens of the people's Republic of China in the exercise of rights and freedoms, must not harm national, social, collective interests and other legitimate rights and freedom."(fifty-first)(http://www.tecn.cn) At the same time, in any society or to any person, everyone to have relations with other people (including all kinds of relationship between the individual and the state in a class society,), this is the Duncan? Kennedy said, it is "essential", but whether this relationship would be "incompatible", whether it will have a "painful sense of contradiction," it depends on different situations.For example, the social system, if in the exploitation of man by man, oppressed people in society, to be exploited, the oppressed people of freedom, his relationship with the exploiters, the oppressors of course is not compatible, i.e. confrontation, hostile.Or just couple terms, in the event of discord, and even rupture, certainly is not compatible, but under normal circumstances, it can not be said to be incompatible.(http://www.tecn.cn) Criticism is to explore the nature of law jurists capitalist social problems, to our country jurists, also has the instructive, because their view is essentially the law circles of our country about the legal and social class character question.(http://www.tecn.cn)