Economic Law In Real Terms

The goal of the dissertation is to answer the question from jurisprudence: Why Economic Law is an independent law in modern society. The argumentative approach to the subject is based on the theory of ideal types of law conceived by Max Weber P · Nonet and P · Selznick. The thread of the dissertation is the tendency of anti-formalism in modern law. Along the thread, the author analyzes new legal characters of Economic Law in legal substance legal reasoning legal profession and legal institution, which are distinguished from traditionalistic law such as Civil Law Administrative Law, etc. The author puts forward a thesis that Economic Law is Weberian substantive rational law or P · Nonet and P · Selznick's responsive law but not formal rational law or autonomous law. In this sense, Economic Law is a new type of law and represents a newfashioned legal mode, which development has impacted and influenced largely our traditional legal notion legal technology and legal knowledge. Confronted with the impact and influence, only do we wriggle out of the ties bound by formalism and burst through the limitations of our thought whence traditional legal mode sprung, we can better perceive Economic Law and legality construction of market economy in China.Around above question, the sequence of the author's argument is combing-survey-orientation-reconceiving-foresingt. The dissertation contains five parts:Part I According to Max weber's theory of ideal types of law, the author summarizes formalistic development of law and analyzes relative problems, such as the definition of legal formalization law how and why to be formalized modern law why to be anti-formalism conflict and harmony between formal rationality and substantive rationality of law. This is prepared for the next argument.Part II Citing R · M ·Unger's analytic framework of autonomy of the legal order, the author compares legal rule with legal standard formalistic legal reasoning with substantialistic legal reasoning purity of legal theory withmixture of legal theory , monopoly of legal practice with open of legal practice bureaucracy of legal institution. With de-Bureaucracy of legal institution. It suggests that legal characters of Economic Law be largely different from traditionalistic law such as Civil Law and Administrative Law.Part III In this part, the author summarizes foreign scholar's theory of ideal types of law, such as R · M · Unger Gunther Teuber Jurgen Habermas P · Nonet and P · Selznick. In ideal types sense, the author argues that Economic Law is substantive rational law but not formal rational law. Based on the argument, the author analyzes the independence of Economic Law and the relation among Economic Law public law and private law. In the author's opinion, Economic Law is independent of legal mode or types of law but not independent of legal department. The author is of opinion that independence of Economic Law is unrelated to the partition between public law and private law. Moreover, the author reviews substantialistic tendency of Economic Law and emphasizes the tendency to be perceived a progress but not a circle or a setback. In fact, the mistaken leaning that Economic Law is advanced or buckward as compared with traditional legal department, which is denied by the argument from an angle of legal philosophyPart IV The author rethinks inherent limitations of the rule of law in state intervention. The author points that the rule of law in ordinary sense is the rule of formal rational law, complete conception of the rule of law not only contains corresponding "formality" but also corresponding "substance". It is deficient to divide the conception of the rule of law in "formal" and "substantive" conceptions of the rule of law. "Substantive" conception of the rule of law per se is questionable. In other words, conception of the rule of law in ordinary sense is "formal" conception of the rule of law. Accordingly, "rule of law" in the thesis--"state intervention governed by the rule of law", which is only...