The Concept Of Prohibitive Law Norms

By the method of normative analysis, taking the significance discrimination of the prohibitive normative word "may not/shall not" as cut-in point, particularly explores the historical origin and the influence, the logical status and the provision structure of prohibitive norms, the thought mechanism to achieve legal order as well as the inevitability of Chinese legal system modernization through legal transplant and its route dependence under globalization circumstance. The major clue running through the whole text is: although human civilization originated from the totem system shaped by prohibitive norms, the normative decline of the legal system was an inevitable historical trend. As long as the humanity's light of rationality is lit, increase of suspicion spirit and right consciousness can not be inhibited. Any attempt for identity normative order is no longer feasible. The legal order should not be formed by suppression but by person's own demand so as to obtain legitimacy and validity. Therefore, it is inevitable that the right - obligation category was adopted as the main adjustment mechanism of modern legal system. Along with unceasing expansion of scope of right, the normative decline still continues. This rule decides that any modern legal system can only be externally forced and formal rationality. However, the historical difference between Chinese legal system and the modern legal order decides that we shall realize the modernization of legal system as soon as possible through legal transplant, which is an inevitable way that must be taken.The first chapter mainly solves three problems. Firstly, it defines that the significance of "may not/shall not" is "may not" in Chinese usage through the analysis of massive norms. It clarifies the different comprehension of normative order through the different usage of "may not/shall not" in Chinese and American constitution. Secondly, it uncovers the historical connection between the law and the morality through tracing the origin and changes of "may not/shall not". In another word, the law always reflects contemporary moral ideology. Finally, it reviews the possibility of analyzing "may not/shall not" with modern linguistic theory, but the conclusion is negative.The second chapter mainly reviews the origin and historical influence of prohibitive norms. Prohibitive norms originated from food taboo and sexual taboo of primitive society, and mainly displayed by the form of totem taboo, which fully demonstrated the common nature of institutional origin. Through the initial taboo system, the humanity avoided the extinction destiny and opened the door of civilized society, which also greatly influenced the thenceforth legal system of civilized society. China's patriarchal clan system is a direct generation from the totem system. Some principles of western constitutional system originated from the religious taboo, while these taboo norms are still exerting the lasting influence in western constitutional system until now.The third chapter reviews the logical status of prohibitive norms in four aspects. First, the generation of prohibitive norms has its inevitability, which comes from the striving for survival. At the same time, the human society could not be established without prohibitive norms, so prohibitive norms logically pre-exist. Second, prohibitive norms establish the foundational status of "private domain" in modern constitution. Third, based on the discrimination of "right" contained in permissive norms on two levels, it denied the rationality of the logic position of prohibitive norms expressed by logic matrix. At last, through the form of seeking the supplementary set, it proves that the prohibiting norms are the supplementary set of other norms and that prohibitive norms are the common ground of other all norms, thus finally proves the proposition that prohibitive norms are foundation of the legal system.The fourth chapter proves the proposition that" the decline of the legal system is inevitable" through uncovering the secret of prohibitive norms structure. First, it reconstructs the argument about the legal provision structure aroused by Analytical Jurisprudence. Austin deemed that the order rule is the main part of the provision structure, but Kelson thought that the punishment rule is the main part of the provision structure. Hart believed that the provision structure should have diverse forms, but the punishment rule is by no means necessary to any provision. Next, it analyzes the argument of provision structure theory in China, based on denial to traditional three-requisites doctrine and double-requisites doctrine, some scholar presents that provision structure should be discussed in ontological domain with a contemporary nature, which is a basic restriction and an important start of exploration on legal provision structure doctrine in this thesis. After that, it presents the duality-double-level-structure theory of legal provision. It regards that legal provision is composed of two levels and three requisites, including condition sentence as a media, regulation rule, and administrative rule. Then, it discusses the effect to the legal system by character of prohibitive norms, which led to the appearance of Legal-Instrumentalism, thus the decline of normative order of the legal system is inevitable. Finally, it inspects the family tree of the decline of normative order. It deems that just the decline of normativity made modern legal order erect based on human's demand—right, thus the modem constitutional institution is inevitable.The fifth chapter mainly reviews the human's thinking mechanism to achieve legal order. Because all external molds to shape legal order are realization of intrinsic thinking mechanism, review of the thinking mechanism to construct the legal order should be the focus. First, this chapter reviewed the classification of thinking mechanism of totem taboo in primitive society. Second, it inspects the development of classification and naming mechanism in civilized society and points out that they have essential function to make order. Third, based on the different characteristics of order mechanism classifications between the modern society and pre-modern society, it points out the classification of thinking mechanism of the modern legislation has the character of analogy. At last, it points out that judicial process essentially displays the thinking mechanism of analogy. Then it draws a conclusion that pursuing the identical order in the modern society is not realistic, that just the normativity-decline-rule shapes the analogical character of modern legislation and judiciary, which is the basic characteristic of modern legal order.The sixth chapter has three aspects. First, it contrasts three differences between Chinese constitution and American constitution, including usage of word in expression, comprehension on basic rights, and legal spirit, which shows that we never step into self-government era. To realize legal system modernization in a country without rule-by-law tradition, legal transplant is the only approach. Second, it demonstrates inevitability of legal transplant. Modernity internally demands legal system modernization, while globalization is certain background of legal system construction as an important consequence of modernity. Legal transplant is one main approach to realize legal system modernization, which assumes legal ideal prospect construction as a premise. Basic characters of era determine doctrinal basis, basic purview and methods selection by which we explores legal transplant Inevitability of legal transplant exists in internal logic of modernity and globalization. Chinese legal system modernization must adopt general rule-by-law spirit as its basic direction. In globalization era, legal system modernization must conform to internal logic of globalization and should pursuit for a creative and surpassing route based on all excellent cultural wealth.