Introduction : This article is about Legal Theory Thesis The model text has more than 10000 characters. The topic of the discussion is about "the practical dimension of legal theory - the exploration of theoretical and practical problems". As the search for the article recommendation is rather messy, readers can sort it out by themselves. The specific content is to see the content of each paragraph. For the publication of the paper, please contact Mr. Li. ( QQ/WeChat: see the top of this article )
author : Yu Xiaoqing
abstract In view of the serious disconnection between legal theory and legal practice in China in the past decades, as well as people's complaints about the "uselessness" of theory, this paper believes that legal theory has its own practical character, and it has identity and interaction with legal practice. This is of great significance for seeking a positive interaction between theory and practice, giving play to the role of legal theory in legal practice, and promoting the development of law and the rule of law in China.
key word : legal theory; Legal thinking; Legal practice; Practical function;
(Legal Theory Thesis) The Practical Dimension of Legal Theory -- Exploration of Theoretical and Practical Difficulties
For the problem of "theory and practice", every legal person will put forward some views based on his own experience and understanding, but it is nothing more than the view that China's legal theory (1) is seriously disconnected from legal practice, and theory is "useless" for practice. In fact, theory and practice have their own independent character, but they are more identical and interactive. This article intends to clarify the practical function of legal theory from the perspective of the relationship between legal theory and legal practice, by reviewing and reflecting on the law since 1978 (2), in order to eliminate the misunderstanding and prejudice of "useless" theory, play the role of legal theory in legal practice, and promote the development of law and the rule of law in China.
1、 Difficulties in China's legal theory and practice
From the situation of legal research in China in the past 30 years, there is a problem of separation between theory and practice on the relationship between theory and practice in China, and the theory appears weak and useless. Although the research of sociology of law has made great efforts to combine theory with practice since the middle and late 1990s, it is still unable to fundamentally change this situation.
In 1978, with the restoration of the legal system, China's legal science started. Due to the transplant background of China's laws, the foreign laws and legal theories cited are facing the process of localization. However, the theoretical research situation is that the researchers of department law often only pay attention to the rules and their interpretation; Jurisprudence research is full of a large number of political or moral discourse (1), which reflects the way of writing from the ought to be proposition to the ought to be proposition. The research level is relatively low, and it is basically an empirical jurisprudence research relying on the perceptual knowledge and intuitive experience of legal scholars.
[1] Since the late 1990s, there have been some sociological studies focusing on the reality of law in China, such as empirical investigation and research methods, focusing on grass-roots judicial operation and folk law research, making law begin to pay attention to local judicial practical operation knowledge and theory, to a certain extent, the situation of serious separation between theory and practice in China has improved, and some practical problems in the transformation of the rule of law, Topics such as governing the country according to law, legal construction, trials, and courts have attracted attention.
However, in the scholar's research report, the summary of the theoretical and practical issues is still that the theoretical research work contacts practice, goes deep into practice, and serves practice insufficiently, which is seriously insufficient to guide practice, while the actual legal work also ignores the theoretical research results.
[2] 228 This shows that the disjunction between theory and practice in China has not fundamentally changed.
Complaints and criticisms about the "uselessness" of theories come from both legal practitioners and scholars themselves. Legal practitioners always complain: "When practice seeks theoretical guidance, it is always difficult to find a prescription for the problem and there is no solution."
[3] They are sceptical about whether the theoretical research on judicial practice can produce practical effects.
[4] The scholar also admitted: "Many of the knowledge provided by China's contemporary law schools is not what judges need, and what judges need urgently is not what illegal schools can provide."
[5] The theoretical research of scholars in the past 30 years does have such defects. Law professors and judges "sing their own tunes". Even the legal methodology research focusing on judicial practice, when introducing and discussing foreign legal method works, they also fully use academic language.
[6] However, some scholars admitted that "legal methodology, as a practical philosophy, is not an action plan for legal persons to handle cases. It is still a theoretical form and describes the way of legal thinking."
[7] Therefore, it seems that we should treat the complaints and prejudices about the "uselessness" of theories with caution.
There are many reasons for the disconnection between the above theory and practice, which is fundamentally due to the background of legal transplantation in China. Due to the translational transplantation of law, Chinese modern jurisprudence basically ignored the practical attention and research on China's practical problems in the process of knowledge generation, and there was a gap between legal theory and its research object; The normative system of law is incompatible with social reality; Compared with other disciplines, contemporary legal research lacks more academic traditions,
Lack of tradition of studying Chinese reality; The research methods of law are also quite backward due to the fact that law cannot go deep into the society and lack of understanding of other social disciplines. Even if we pay attention to the actual research of sociology of law, we can not fundamentally change the situation that theory is disconnected from practice. Some people believe that theoretical research is mainly based on secondary written materials, rather than refining and summarizing direct experience, which is the most important reason for the disconnection between theory and practice.
[3] There are many reasons for the "uselessness" of the theory. First, there is a gap between the theory required by legal practitioners and the research done by scholars for practice. Some practitioners believe that theory cannot give a clear answer to practice, and when practice seeks theoretical guidance, it cannot find a "prescription" for the disease, so they even despise theory and even conflict with it.
[3] Some scholars believe that only when theory is separated from practice can academic independence be maintained. Professor Chen Jinzhao said: "Legal theories are all in the form of theories, so some people often complain about their disconnection from practice. In fact, if the theory is not higher than practice (at least separated from practice), it cannot be called a theory. Although legal theories are all from practice, they are not necessarily oriented to practice..."
[6] At the same time, he believes that practice oriented theories, such as legal methodology, play a role in the practice of rule of law by means of legal thinking.
[7] Secondly, the "uselessness" of the theory is related to the fact that legal practitioners do not understand the theory, and their theoretical literacy is not high, as well as the theory is relatively advanced. For example, legal methodology books should be read by judges, but few judges can understand them. This makes judges doubt the practical utility of theoretical research.
In the summer of 2004, Professor Chen Jinzhao went to the Dongchangfu District Court of Liaocheng City, Shandong Province to conduct a survey, the content of which was to investigate the extent to which contemporary judges had mastered legal methodology, but there was no result. This investigation shows that scholars are worried about theoretical research. [4] In addition, scholars' research is restricted by objective practical conditions,
(2) The theory studied may not meet the needs of legal practice, which is the objective reason for the "uselessness" of the theory. Of course, we must also admit that some theories are not designed to guide practice, but to perfect the theoretical logic system. As long as the theory is to improve the theoretical system, it is useless for legal practice.
The above complaints and criticisms on the theory, to a certain extent, show that: as far as the problem of theory and practice is concerned, the main existing problem in China is that the theory is difficult to play its due role in practice, and the significance and role of the theory are despised and misunderstood. If this goes on for a long time, it will inevitably lead to the devaluation of the practical function of the theory, and even treat the theory as a metaphysical thought of "doing nothing", making the practice become blind practice, so as to prolong and intensify the "pain" in the process of practice.
Recently, some scholars have called for strengthening communication between jurists and jurists to turn their rational thinking into judges' experience in handling cases. [8] The 2010 annual meeting of the Judicial Theory Research Association of the China Law Society focused on the theory and practice of the people's courts in promoting three key tasks (1), indicating that in the interaction between theory and practice, China has begun to pay attention to the specific application of legal theory in legal practice.
Therefore, from the perspective of the relationship between legal theory and legal practice, clarifying and positioning the practical character of legal theory is particularly important for improving the disconnection between theory and practice and playing the role of theory in practice.
2、 The Practical Character of Legal Theory
The actual dispute settlement mechanism of the court mainly includes three elements: the rules of the statute law, the methods of interpretation and application of the law, and the ideal of the law. Among them, the method of interpretation and application is to explore the technology of judicial rules and give life to the legal system; The ideal of law gives vitality and guidance to these methods, and enables the development of statutory rules in the process of interpretation or application. The legal theory with normative positivist jurisprudence (or "doctrinal jurisprudence") as the mainstream is a statement about the statutory law, exploring the significance of norms,
Concerned about the normative effect of the statutory law, the meaning and content of the norms, as well as the judgment benchmark contained in the court decisions, it is carried out around the three elements of the statutory law and the judgment rules, the method of interpreting and applying the law, and the legal ideal, which is closest to judicial practice. Bern Weideshi pointed out that the function of theory lies in "explaining a specific research object (interpretive function) and predicting and solving problems within the scope of the research object (predictive function). The two functions of theory are inseparable.
An 'effective' or even just needed interpretation of the 'world' segment lays the foundation for practical, social and political behavior, whether to maintain the status quo or to reform the status quo "[9] 12. The significance of legal theory to legal practice is self-evident.
（1） Legal theory has always been a professional knowledge
From the day when it came into being, law science has been the annotated law science, which is the interpretation of the statute law, namely the Roman law. At the beginning of the 12th century, the School of Annotative Jurisprudence was engaged in the annotation of the classical Roman legal corpus with the methodology of scholastic philosophy. It not only attached importance to the stability and clarity of statutory law, but also adopted strict literal interpretation to establish legal concepts; Starting from the concept of law, we should attach importance to the justice and fairness of the content of law, and adopt the flexible principle of equity to meet the needs of society.
On the one hand, it makes a general note on the code system, explaining the summary of the contents of each system of the code, on the other hand, it also notes the meaning of the legal articles themselves, attaches importance to the meaning of individual legal articles and the relationship and distinction between various legal articles, with a view to proposing the boundaries of legal definitions and the principles of general law. In terms of legal provisions, the following five methods can be used:
(1) The summary of similar chapters and sentences and the abstract of the new imperial edict law can be easily used in legal practice.
(2) Questions puzzle. In order to try to solve their contradictions or propose compromise opinions.
(3) Divisions and destinations. It is used to solve the contradiction of the source of law or to demonstrate the facts so as to establish the system of law.
(4) Argumenta. There are some legal theories in the Roman Law Anthology to demonstrate the difficulties of law, and the size of the demonstration power depends on its relationship with the problem of demonstration.
(5) Questions of fact. When interpreting the source of law chapters and sentences, it often involves a question of fact, which cannot be solved directly from the content of the source of law chapters. It is necessary to analyze or discuss the nature and scope of the fact first.
[] Although the annotation school of law has not established a unified and complete legal system, it uses Topik's method to complete general annotation. Accursius' famous book "Lecture on the Study of the Roman Code" is regarded as the Glossaordinaria of Roman law. "The court need not consider the principles not recognized in the standard annotations" has become the basis of all future studies of written law. []
On the basis of annotating the theory of the school of law, the school of circumstantial jurisprudence specializes in identifying various legal issues or court instances (Gutachtert ä tigkeit), attaches importance to practical interpretation, and is called a Konsiliatoren, which has a great influence on the actual judgment work of the court. The contents of the sparse evidence include:
1. Discussion and evidence clarification. In addition to the original texts of lectures given by law universities at that time, the scope of lectures also included review content and additio attached to the original texts. The review content was an in-depth explanation of important chapters of the Roman Law Anthology, and the thematic discussion was a special explanation of individual legal issues, both of which were commented and interpreted in accordance with the needs of legal practice.
2. Legal issues and litigation evaluation and interpretation. The School of Sparse Evidence commented on legal issues or bills, which were completely aimed at the actual needs of legal practice, including:
(1) Solving individual legal problems (quaestio) for practical application is the key point of the school of evidence reduction law.
(2) Practice appraisal (consilia). It is a legal solution proposed by jurists according to the method of "problem solving" for the court's litigation cases or legal disputes of the parties, for reference by the practical circles. It is a continuation of the achievements of jurists in legal practice in European countries, especially in Germany. The legal theory of Bartolus and Baldus, the two sparse evidence jurists, has a profound impact on the later legal science, and can even be said to be the direct source of modern German law. [10]105
The Annotative School of Law paid attention to the interpretation of Roman law and created the medieval Roman law, while the Sparse School of Law paid attention to the legal identification in practice and developed the Roman law. Therefore, law is initially a statement about the statutory law and the rules of court decisions. Statutory law and judicial rules mean binding and normative content. Taking this as the research object, law science shows that it is a normative science, and its theoretical statements are not true or false,
It is a question of appropriateness and impropriety, and mainly lies in the construction of an effective world with norms, whose internal logic is self consistent, which makes it have the mission of professional knowledge.
（2） Legal theory has the function of seeking legal path
In essence, the process of judge's judgment is the process of seeking law. In this process, the application of legal theory is essential.
Legal concepts are tools for identifying rules and reasoning. The defined concept enables judges to correctly understand the meaning of legal norms in the process of inclusion, so that they can identify the applicable statutory rules according to the facts of the case, making judicial practice operable and scientific. Concept is also an indispensable tool for judges to think rationally about legal issues and judicial reasoning.
Without concept, judicial activities cannot be implemented accurately. Since the legal theory has established a clear concept and logic system for the extremely complicated empirical law norms, it has provided a very convenient tool in the information supply.
As the basis for finding the law, the theory of legal relationship is the basis for bringing the specific case facts into the typed legal facts; The theory of source of law and the theory of legal hierarchy are the theoretical basis for the application of law. In addition, whether the judge adopts the rule of law theory or other theories (such as morality) will directly affect the judgment results of the case, such as the "Luzhou Legacy Case" in Sichuan Province. Whether the judge uses a moral standard higher than the law or a rule of law theory to judge the case will directly lead to differences in the applicable rules and the judgment results.
Inductive reasoning, typology theory and analogy theory provide methods for finding methods. Since a concept is a description of an object in terms of thinking, expressed as "what is, or what is not", it only forms knowledge and content, is a closed and differentiated thinking, and is not related to the facts of the case. The judicial practice is to find appropriate judicial rules according to the specific case facts, and the constituent elements of the statutory rules are preset by the legislator according to the typed facts at the time of legislation.
Therefore, the judge must return to the type of legal reference in the specific legal discovery. This requires judges to summarize and type the facts of the case. Inductive reasoning helps judges to find general rules from specific case facts, while typological processing helps judges to connect case facts and values according to the "nature of things", so that typological case facts can be compared with normative fact types, and find appropriate rules for adjudication.
（3） Legal theory has the function of guiding interpretation
The difficulty of statutory rules is that they are general. To apply them to specific cases that are constantly changing, judges need to interpret statutory rules by using legal theory rather than simply passive implication. Savigny believes that: "The jurist class also processes legislation and promotes the transition from legislation to real life." [11] 43
Legal concepts and terms as well as basic legal system theory are the basis for interpreting the rules of statutory law. The formality, accuracy, clarity and durability of legal concepts and language make legal interpretation certain certainty and scientific. Because there are contradictions, disharmony and ambiguity in the provisions of the basic legal system between laws and articles, the theory of the basic legal system becomes the basis for the judges to make a reasonable interpretation. (1)
The method of legal interpretation provides guidance for the interpretation of statutory law. Because humans do not have a closed list of rules of interpretation. As far as the theory of interpretation method is concerned, there is inevitably a distance between the rules of statutory law and the facts of the case. If we follow the legal positivism theory, we must obey the "subjective interpretation theory", which can only be based on the real intention of the legislator; If we follow the "objective interpretation theory", we should use the law and predict the possible significance of today's legislators in the current situation,
Make a purposeful explanation based on the current situation. According to the philosophical hermeneutics theory, in terms of the understanding of the meaning of the law, it is bound to integrate the law into the process of mutual subjectivity, which is essentially a rule creation act and is often considered to have subjective bias. In terms of interpretation methods, there are literal interpretation, historical interpretation, systematic interpretation, purposive interpretation and other interpretation methods. Although literal interpretation is the most fundamental, in fact, many interpretation methods have no definite sequence.
Therefore, the use of different interpretation theories and methods often leads to different interpretation results, and all kinds of interpretation theories and methods have advantages and disadvantages, which need practitioners to weigh and choose in handling cases. In order to make the judgment result acceptable to all parties and lawyers, judges usually take objectivity and correctness as the premise of judgment to show the uniqueness and rationality of their choice.
Therefore, in the specific application of law, no matter what interpretation theory is used, legal practitioners will inevitably combine them with the theory of legal argumentation. Because the argumentation theory shows objectivity, only when it is combined with argumentation can the referee be easily accepted.
（4） Legal theory has creative function
The critical task is the basis for legal research and theoretical freedom. Law cannot be satisfied with the provisions of the current statutory law, nor can it only follow the existing judicial practice. The mission of scholars is to criticize. Criticizing and revising the rules of statutory law and judicial practice is an essential part of legal research. Therefore, legal theory is the result of critical examination and has the function of creating rules of adjudication.
Alexis believes that the doctrinal sentences related to legal norms and judicial decisions have normative connotations. They are not equivalent to description, but form a harmonious whole, which is proposed and discussed within the legal framework promoted by institutionalization. [12] 312, 317 Some legal concepts in legal dogmatic sentences have even been accurate enough to be directly applicable to individual cases. The normative connotation of the legal theory makes it qualified to act as a specific rule of adjudication and provides a benchmark for judicial practice.
In practice, legal theories are used as the basis for adjudication:
First, some legal theories are the basis for the direct application of judgments. For example, before the Supreme People's Court made a judicial interpretation in May 2009, the principle of change of circumstances was purely a legal theory, but all courts in various regions took this principle as the basis for case adjudication
(1) Some courts even consider this principle as a legal provision.
(2) Therefore, legal theories such as the principle of change of circumstances have not been stipulated in the Contract Law of China, but before the Supreme People's Court issued the judicial interpretation, they had already become the judgment rules with universal binding force.
Second, some legal theories are the basis for judges to determine facts. For example, in the civil judgment of Changsha Intermediate People's Court (2009) CZMEZZ No. 2624, the judge applied the provisions of Article 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (II) to the appeal request of the facts of the case, In the judgment, the legal theory was used to distinguish between the change of circumstances and commercial risks, so as to ensure the correct identification of the facts of the case. (3)
Third, some legal theories are the basis of judges' reasoning. Such as the theory of constitutive elements of crime, the theory of constitutive elements of civil legal relations, etc., are the basis for judges' reasoning. The theories of the principle of law application, such as "the superior law is superior to the subordinate law", "the latter law is superior to the former law", and "the special law is superior to the common law", have been applied in judicial practice as early as before the Legislative Law.
Fourth, some maxims and proverbs are binding grounds for adjudication. For example, in the Elmer case in 1882, according to the principle of "no one can benefit from his wrong behavior", Earl Judge held that the testament law should be understood as denying the inheritance right of the person who obtained the inheritance by killing, which made Elmer lose the inheritance right. [13]
In addition, the ideal of law has led to changes in judicial decisions or legislation. The modern concept of the rule of law emphasizes both formalism and substantialism of the rule of law. The inherent concept of fairness and justice in legal rules endows the legal system with openness and flexibility. The ideal of law is often used for various interest demands or value judgments in conflict states in difficult cases such as rule vacancy and rule contradiction, in order to achieve case justice, with the nature of "result consideration" and "purpose orientation".
It is deeply hidden between the lines of legal norms as a form, is the content of legal norms, runs through the entire code, is guided by the value system set by the entire legal system, and is the moral bottom line set by human beings to meet their own needs for order and peace. It mainly refers to some common life principles recognized by most people, such as the fundamental principles of natural law such as justice, equity, and interest contest, with the purpose of pursuing the ultimate concern for people,
Therefore, it has the same value pursuit as the law that sets the rules of conduct on the basis of rationality, and therefore the science of law has become a truly great theory. The ideal of law not only respects the minimum freedom and rights of people, but also stipulates the starting point of the obligations and responsibilities that people should bear to others and society, so it can provide value orientation for the rules of judicial adjudication.
In fact, the legal ideal that has not yet been substantiated often enters the law through a certain exemplary event, breaking through the threshold of consciousness. The doctrine or the court will express it, because of its internal persuasiveness, sooner or later it will be generally recognized. Therefore, legal theory is not only limited to providing assistance to judicial adjudication, "one of its most important tasks is to find some legal problems that have not yet been solved in the current law, so as to promote changes in judicial adjudication or legislation." [14] 113
（5） Legal theory has persuasive function
Legal concepts and language are tools of persuasion. The connotation and extension of a concept is the qualitative stipulation of things, which indicates the specific category and research object of the concept, and is the premise for us to know something. Like language, concept is an indispensable tool for the expression of human thoughts and a medium for communication between people. They not only contribute to the formation of the legal professional community, but also enable the exchange of ideas among members,
It is also a tool for legal practitioners to prove and persuade others. Although legal language and concepts are specialized and have different meanings from those in daily life, any professional term will eventually serve the legal practice. Since people's imagination of legality and lawlessness is not in the scope of legal language, but is given through daily language, Kaufman pointed out that "the language of law cannot be too far away from daily language" [15] 198,
It should have a certain degree of similarity. Only in this way can the daily world of life facts and the world of legal norms not be separated from each other, and the judge can communicate with the parties in legal language, and compare the behavior of the parties with the legal behavior. That is to say, the process of the judge persuading the parties is actually a process of two-way interaction between the professional language and concepts of law and the daily language and concepts of the parties, and gradually drawing closer,
He must be able to shuttle between daily language and legal language. "In the process of mutual transformation, the behavior mode that the actor thinks and the concept that the judge thinks are gradually close, which is an indirectness of language expression." [15] 198 Only when the language and concept are close to each other, can the judge and the parties reach a certain consensus and lay the foundation for the acceptability of the judgment. Legal language and concepts are more realistic for lawyers.
Any competitive interpretation must be based on language and concepts, otherwise it cannot be understood. Therefore, lawyers need to have the art of speaking to persuade judges and parties. As Sharon Hansen said: "Legalists always work in language. They are said to be language experts, a group of professionals and [1Technical 6] 1 Qiao18 people who are proficient in spoken and written language."
The theory of legal reasoning and legal argumentation has the function of persuasion. In order to ensure the fairness of the trial procedure, the neutrality of the application of the law and the objectivity of the verdict, the interpretation work of the jurist needs the help of legal reasoning and legal argument to convince people. Kaufman pointed out that "the structure of the process of legal discovery is in a state of common action of deduction, deduction, induction and presumption." [15] 198 Among them, legal reasoning and logic are highly valued by lawyers because they can guarantee the consistency of argument,
Therefore, it is generally believed that professional lawyers and law students are good at the art of reasoning, and they are logical people in debate. However, "legal argumentation is often a delicate balance between facts and/or theories and the application of existing rules. They are linked by reasoned comments to persuade people to accept the validity of the proposed results." Judges often choose the most persuasive and acceptable argumentation according to the argumentation proposed by both parties.
For lawyers, an effective argument is crucial. In competitive argumentation, only when lawyers can make more effective argumentation than the other party and lawyers can they be accepted by judges. Therefore, legal argumentation is the core skill of judicial practice, which is premised on many complex skill combinations, including various legal reasoning, interpretation and methods of applying rules.
To sum up, the abstract concepts and theoretical system formed by legal theory in the study of statutory law and judicial rules are of vital significance to legal practice. We can see the natural relationship between legal theory and legal practice from the fact that the "court case" channel of the Peking University Legal Web uses "academic words" as the search term of court judgment documents (1). Legal theory is not only interpretive, but also normative; It is not only practical, but also super practical.
3、 Seeking Interaction between Legal Theory and Legal Practice
The reason why legal practice needs legal theory and why legal experts and legal practitioners can communicate and exchange is that there is identity and interaction between theory and practice.
There is a relationship between legal theory and legal practice. On the one hand, theory and practice are separated. Judges, lawyers and jurists, as members of the professional community, can be collectively referred to as "legal persons". However, jurists and jurists have different roles, which makes a distinction between the mission of jurists and the responsibilities of jurists, theoretical knowledge and practical knowledge, theory and practice. The study of ideal law by jurists is the embodiment of legal conscience and ultimate concern,
It is a critic and perfector of the current legal system of society; The jurist's study of the real law is to solve the specific problems in the implementation of the law, and is the guardian of the current legal system of society. They construct two different sets of knowledge: theoretical knowledge of law and practical knowledge of law. Theoretical knowledge is to study the ideal law, interpret the legal principle through the judgment of legal issues and the criticism of legal phenomena, and provide value criteria for the judgment and criticism of existing laws,
Is knowledge rationality; Practice or practical knowledge refers to the specific knowledge of legal professional thinking and skills, which solves the specific problems of the application of the handling method of individual cases, and belongs to the practical rationality in the specific operation level. Posner believes that "the public duty of law professors is to expose these skills, show (often disapprovingly) the errors of facts or precedents, the errors of facts and arguments, the space behind sharp arguments and rhetoric, and these are standard methods of judicial creation."
[17] But judges always want to hide their skills and dress up their judicial opinions, as if they were naturally derived from a previous judicial decision or the language of a statutory law or constitution, without any artificial factors. [17] The jurist is forced to make a decision, so it is impossible to wait until the problem is thoroughly discussed in theory and a convincing answer is obtained before making a decision; And jurists are not forced to make decisions like jurists.
[14] Due to different professional positions and perspectives, jurists and jurists have different choices. But on the other hand, the separation of theory and practice is not to draw a solid line, nor to oppose theory and practice, but to make theory better serve practice. At the end of the 2nd century and the beginning of the 3rd century, legal education became systematic, separated from practice and organized by law schools as a result of the urgent need to systemize, standardize and rationalize the internal order of legal theory.
[18] It can be seen that the separation of legal theory and practice, and the completion of teaching by universities, is not only the requirement of systematization and standardization of legal theory, but also the requirement of social division of labor, refinement and specialization, and is for the convenience of thinking habits and knowledge seeking. Savigny believes that "the practical needs of the nation can only be expressed and met in science. As a result, the law itself has acquired a uniqueness, and is adapted to the following situation, that is, in the work of jurists,
Theory and practice are intrinsically linked... "[11] 75
In real life, theory and practice cannot be completely separated. Both the ancient Roman jurists and the modern and contemporary countries of the two major legal systems, legal theory and legal practice have shown the bond of "being each other". Legal theory expects legal practice to provide it with a realistic opportunity, and legal practice expects legal theory to provide it with a source of wisdom. The ancient Roman jurists' "theory and practice are the same. Their theory is constructed to apply immediately, and their practice is completely sublimated by the baptism of science."
[18] The tradition that jurists and their doctrines were highly valued was still maintained until the modern code was formulated. France's huge annotated book on Napoleon's Code plays a very important role in justice; After the establishment of the German Civil Code, scholars' theses and works were used as a powerful reference in the trial. [20] The "file transfer" system in German history enables university law schools to pronounce judgments on the files transferred by the court in the name of the court.
[10] 256 The influence of the German Law School on trial practice still exists today. German law professors generally hold concurrent positions as judges. Due to the close relationship between law professors and trial practice, their teaching contents are full of lively atmosphere, and the school curriculum and examination system are affected by trial practice. Whether it is a school or a national law exam, except for a few subjects such as legal history and jurisprudence, the test questions are all example questions and have a code.
In short, in the field of legal science, it is impossible to separate theory from practice. [21] 455 In common law countries, the close interaction between theory and practice goes without saying. In Britain, lawyers engage in quasi scholarly legal research because they undertake court debates, and are known as "scholarly practitioners", while judges above the High Court are appointed from "a few outstanding figures among such scholarly practitioners", High quality precedents are produced by the traditional cooperation between excellent lawyers and generally more outstanding judges.
[20] Bern Weidsch believes that "in law and jurisprudence, unless there are serious functional failures and deviations, there can be no theory without a practical basis or practice without a theoretical basis. If a practitioner, such as a judge or a lawyer, lacks basic theoretical knowledge, he cannot be called an excellent practitioner. Theory and practice must guide, enrich and revise each other." [9] twelve
From a philosophical perspective, the inseparability and interaction between theory and practice work through the way of subjective thinking. According to the "Observation Infiltration Theory", observation depends on theory, and observation permeates theory. The world that people observe is the world of manager theory intermediary, engraved with the historical content of the theory. The observation and thinking of the practical subject on the world and how to carry out practical activities are restricted by the theory as a knowledge system and regulated by the theory as a way of thinking,
It is also guided and shaped by the theory of values. Philosophical hermeneutics advocates the significance of "pre understanding" for the subject to understand and judge things. In fact, like the "observation penetration theory", it shows the conditionality of the essential forces of the spirit such as "pre possessing", "pre mastering" and "pre seeing" for realistic cognitive activities. Practice is the intersection of thinking and existence. The theory has such practical functions as interpretation, standardization, criticism and guidance,
It will definitely participate in practice through the theoretical experience of the subject, and have an impact on practice through subjective thinking. As Savigny said: "If theory and practice are often regarded as completely separated or even contrary in law, then such a view is very worthless. For legal theory and judicial practice, what is different is only the external profession and the application of legal knowledge obtained; But the way and direction of thinking, as well as the education leading to them, have something in common... "[11] 75
In view of this, in order to seek the interaction between legal theory and legal practice, legal practitioners should first understand and grasp legal theory, so that it can be internalized as part of their own spirit. One is to understand and grasp the theory of ideal law, so that legal practice can reflect the care for people and achieve fairness and justice; The second is to understand and grasp the operational knowledge and skills directly oriented to practice, so that there are available methods and means for the application of law. Legal practitioners can only understand and master legal theory,
To apply the practical function of theory to practice. If the legal practitioners master the legal theory as the source of law, they can be used in the adjudication of cases that need to be amended and supplemented; Grasp the theories of judicial methods such as legal hermeneutics and legal argumentation, which can be used to interpret and apply the statutory law, so that the specific case argumentation is correct, objective and persuasive; Master professional analysis and judgment knowledge of legal theory,
It can enable legal practitioners to have the professional ability and professional level to deal with complicated cases in modern society, and so on. Ezra Pound said: "The judgment of justice is an art. But to study the authoritative materials on which the judgment is based, how these materials are actually used, how they may be used and how they should be used, a systematic knowledge system is needed.
Mastering some knowledge of legal science will help us better understand the art of judging justice and how it is used. " [18] Secondly, legal practitioners should engage in legal practice activities inspired by legal theory, so that theory and practice interact. Legal theory can open the wisdom of practitioners, expand and deepen their understanding of the world, and enhance their ability to question, investigate and explore. It is of great significance for practitioners to correctly identify the facts of cases, identify and apply the law.
Thirdly, legal practitioners should correctly understand the significance and role of theory, and should not regard the practice oriented theory as a specific action plan and "prescription", nor despise the theory and dismiss it as "useless" because it is not a specific action plan and "prescription". Theory opens up wisdom and acts on thinking, and its connection with practice is often not direct. In legal practice, we can not only emphasize the practice testing theory, but deny the necessity of theory testing practice.
Theory comes from practice and is higher than practice. It is the gap between theory and practice that enables theory to "oppose" practice and promote self transcendence of practice. In fact, theory cannot be a specific action plan or "prescription" for practitioners. Legal practice, as a logic of perceptual activity and external operation, is formed in hundreds of millions of practical activities that are both restricted by thinking and existence, and also change thinking and existence,
It needs the practice subject to obtain it through consciousness activities and thinking operation logic in practice. The specific action plan and "prescription" required by legal practitioners should be obtained by legal practitioners in specific cases, based on existing legal theories and other knowledge, and through thinking operation logic. Although it is not excluded that some universally applicable judicial norms derived from scholars' timely research on precedents can be used as action plans and "prescriptions" for legal practitioners to handle cases,
However, due to the diversity of specific cases, there are also subjective differences in the subjects of legal practice. The specific action plan or "prescription" can only be decided by practitioners according to law under the guidance of theory or after referring to guiding precedents. It is difficult for theory to give a uniform and clear answer in advance. If there is, perhaps the theory of legal methodology can be used. However, it is still a method of theoretical form, describing the way of legal thinking, rather than the specific action plan and "prescription" of the case handler.
Of course, the interaction between theory and practice also requires scholars to root theoretical research in legal practice, so that the theory constructed conforms to reality and can stand the test of practice. At the same time, the theory constructed by scholars should be understood by legal practitioners. If the theory is so profound that it is difficult for most practitioners to understand it, then such a theory will be difficult to apply to the world. To make the intellectual contributions of scholars become the wisdom of practitioners and realize the interaction between theory and practice, it needs the joint efforts of the theoretical and practical circles.
In a word, legal theory is practical and super practical. It is not only the summary and summary of practical experience, but also the critical reflection, normative correction and ideal guidance of practical activities, practical experience and achievements. It can also act on legal practice by opening the wisdom of legal practitioners. The benign interaction between western legal theory and legal practice, and between jurists and jurists has made fruitful efforts in this regard.
In the process of rule of law in China, it is obviously desirable to clarify the practical function of legal theory, seek positive interaction between theory and practice, and give full play to the important role of legal theory in legal practice.
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