Research On Legal Duty

As a paradigm of legal philosophy, legal duty is the foundation-category, just like the legal right. To improve and understand the paradigm, we must strengthen the study and explanation of the foundation-category. In the foundation-category, the concept of the legal right is widely studied. Compared, the study of legal duty is often ignored. So, it is necessary to study legal duty widely and deeply. This paper is trying to study legal duty. This paper is to deep the understand of legal duty via the understand of the concept of law, because in a degree, the interpretation of the concept of law prescribes the stand, starting point, direction and conclusion. By understanding the concept of law, the author of this paper reflected the condition of legal duty study, and explained why the study of legal duty is obviously weak than legal right. In the interpretation of the author, the legal duty should be formed by compromise in the conflict of "ought to be", norm and legal fact. Also, the author set forth the essential factors of legal duty: "ought to be", behavior and the possibility to lead to legal responsibility. When we study things, we do it in connections, which are the only way to deepen the understanding, for the world itself is a connective one. The same is the study of legal duty, which is must be done in a connection of legal right, public power and duty itself. So, the author probed into conflict in legal duty and connection among right, public power, and legal duty. As the knowledge of law, the knowledge of legal duty must be done in a diversified way. So the author offer a possible way—status in the paper. The paper has six chapters, three parts altogether. Part One includes three chapters. First, the author set forth to his stand. The legal view is the understanding of the entirety of the law, and the understanding of legal duty is affected by the latter. Before we interpret legal duty, we have to explain the author's understand of the law, which limited the standpoint, direction and the final conclusion of legal duty. Therefore, the author first raised his point view of law. Though the analyze the great three schools of law, the author gave us his way to understand law: a dynamic, developing one. From this point of view, the author thought that the law in the reality was unified in the conflicting course between "ought to be", norm and legal fact, and was integrated by legislation and judicature. Second, the author set the reality, misunderstandings and reason of the study of legal duty, as well as the defining explain to the concept of legal duty. There are three things which are worth reflecting, the study of legal duty is attached to the study of legal right, badness only, prescriptive concept only. The reason of which, are the basics the pursuers give to legal duty, respectively are liberalism, hypothesis of economical man, defining not descriptive interpretation. After this, the author set forth a descriptive interpretation of his own: legal duty is the comme il faut behavior mode the subject adopted, and is the reason raising legal responsibility. Third, the author analyzed the constructive factors of legal duty. Affected by a developing and dynamic point of view, the author thought that legal duty means "ought to be", legal duty exists in the expectation of people; thus, the goal of legal duty is to regulate people's behavior. Therefore, legal duty should exist not only in the expectation, but also in the realization of people's behavior. Its realization is the behavior mode transformation from expectation to realization. However, not all people want to carry out his legal duty, which may exist during the whole course of human society. That's the departure from behavior mode, which should not be ignored. Last, for the behavior departure, legal duty will raise the possibility of legal responsibility. So, to confirm whether a legal duty exists, we have to ensure if the three factors -should, behavior and the possibility to raise legal responsibility -exist contemporarily. Part Two has two chapters, in which the author studies the concept of legal duty via the study of conflict in legal duty, and the relations among legal duty, legal right and public power.First, the author investigated the relations among legal duty, legal right and public power. He discussed whether legal duty, right and the relation among them are the nuclear category in legal science on the foundation of the discussion of relation with right, claim and society. In fact, in legal science there aren't absolute, objective nuclear category. What were called nuclear category are only the system people understand laws. The nuclear category of legal duty and right is the most convenient one in them, as almost all legal phenomena can be understood and interpreted in the concept of legal right and duty, even public power. And, the author thinks there are double relations between legal right, legal duty and public power. One is valuing, legal duty and public power are both attached to legal right; the other is positivistic, legal duty is correlative to legal right and public power, and constructs a cycling system with the latter two. Second, the author analyzed the conflict in legal duty, which exists not only in theory, but in reality. He reflected existing project through the concept, sort, factors, reason of the legal duty. The conflict in legal duty means the condition that the same person who is responsible for more than one duty cannot perform them at the same time. Legal duty includes what are prescribed by the law but may change in the reality, what are supposed from legal right and legal responsibility, and what are deduced from the whole legal system. These are the legal duty people perform in reality, and author raised in the forepart the developing one. To deepen the understanding of conflict in legal duty, the author classified it in four ways. In succession, the author analyzed the factors and reasons of the conflict in legal duty. The factors include the facts that the legal duty performer cannot perform more that one duty at the same time; the responsibility cannot be attributed to the performer; the condition that the performer has no choice except to disobey one duty of them; there is no institutional arrangement for the settlement. The reasons are, there are contraventions in the rights and interests; human are the limited rational beings; the resources are limit relative to the need; legal duty' are relative; in modern society, the kinds and number of legal rights are more and more. The author also reflected the way and principles to solve the conflict in legal duty.