A Research On Legal Thinking

The dissertation aims to explain legal thinking from the perspective of law through description and analysis of its theoretical way, model, method and position to reveal how bodies olve specific problems according to law and through the use of methods, with the knowledge of "thinking about law". This dissertation attempts to carry out the research on two frameworks, that is, formalism and substantive. This dissertation holds that the conceptual jurisprudence, the pure theory of law and legal positivism constitute the basis of the theory of formalism legal thinking, and the mode of subsumtion, as well as direct interpretation, system interpretation and historical interpretation, is the main mode of formalism legal of thinking. However, natural Law, legal sociology and legal realism, etc., constitute the theoretical bases of substantive legal thinking, and typological thinking, as well as destination hermenautics, sociological hermenautics and law continuation, is the common mode of substantive legal thinking. The former is a typical legal thinking. But the nature of the latter is still in doubt because it always seeks basis not belonging to law. This creation of the dissertation is to demonstrate that the latter is also included in the scope of legal thinking and concluds that the lawyer in China should exercise restraint and adhere to the position of formalism legal thinking according to descriptive and comparative analysis of the two trends. The road of substantive research expands the vision of the scope of the study of legal thinking, narrows the gap between formal logic of the rule of law and justice, and reflects the research of legal thinking and method developing with the times. It is meaningful to overcome the rigid legal thinking of subsumtion.The dissertation is composed of introduction and six chapters. The main content and views are as follows:Introduction analyzes the current research of legal thinking and the significance of the research, pointing out that the current study is not systematic, detailed or comprehensive. The research of legal thinking will not only help us to deep the study of legal study, but to form the homogeneity of legal of thinking of our legal professional community. Therefore, it is useful to realize the rule of law and a harmonious society in China. These factors points out the necessity and legitimacy of this dissertation.The first chapter clarifies the meaning of legal thinking. The concept of "legal thinking" here is not psychological, physiological or neurological thinking, but the legal methodology. The legal thinking mainly concludes the legal expertise, legal professional operation, mode of legal thinking and legal skills. Compared with other thinking, legal thinking has the characteristics of law, tool, conservation, care and uncertainty. Another way of researching legal thinking is to study the attributes of jurisprudence. Based on different understandings of attributes of law, there are different approaches of legal issues. The view leads to Chapter II.Chapter II studies two theoretical approaches of legal thinking, pointing out that the legal theory not only plays the role of providing "pre-see" to enable a smooth begainning of thinking, but decides the thinking process based on theoretical guidance. In this connection, the legal thinking shows two tendencies, formalism and substantive. The former pays more attention to the stability, certainty, objectivity and predictability of the legal norms, while the latter pays more attention to the justice of the case itself, as well as the flexibility of the legal norms and applicability. However, the conclusion of the latter could be questioned , rebutted and overturned.Chapter III analyzes the two modes of legal thinking. Subsumtion mode is the main one of formalism thinking. It emphasizes on the legal reasoning of the syllogism, and stresses that the results must be generated from the premise. This mode is to safeguard the certainty and predictability of the result. Although subsumtion has got a lot of criticism, I still think that this mode should be the main one of thinking. In fact, it is also the most common uesed mode in judicial process. Kaufman considered that the main mode of thinking is a typological thinking. Due to the type of thinking under the analogy is the case with the idea of law-case analogical reasoning, and in the process of the case, a variety of substantive elements and "the nature of things" have been penetrated into account, in this article, the type of thinking is regarded as a kind of substantive legal thinking.Chapter IV focuses on interpretation methods of legal thinking. Based on the legal independence, objectivity and predictability goals pursued by formalism legal thinking, methods of direct, system and history help to safeguare the rule of law. The interpretation of purpose, sociology and methods loophole-filling in the law are tools communicating with law and society, ethics and policy and are methods of substantive legal thinking. To a large extent, such methods can be resolve the rigidity of law, making the law flexible. However, this dissertation points out that there is still a big risk to inspect the substantive justice which is not easy to reach a consensus through these methods. That is the case leading to arbitrary of the judges.Chapter V analyzes the argument methods of legal thinking. Legal thinking should be considered as a way of thinking in accordance with the law, and it should be rational. The legal argument is not only able to show the legal and rational features of legal thinging, but also avoid arbitrary. Therefore it not only guarantees the legitimacy of the legal judgment, but also ensures its admissibility or appropriateness. As the formalism legal thinking emphasises more on its "legitimacy", and the substantive legal thinking emphasises more on the justice and acceptability of thinking outcome, the formalism and substantive legal thinking will be integrated by the method of legal argument. As a result, it can uphold the legal form and independence and communicate with the outside world to maintain a certain degree of flexibility and adaptability.Chapter VI aims at Chinese position of legal thinking. In general, the formalism legal thinking corresponds to the position of judicial restraint, and the substantive legal thinking to the position of activism. Because Chinese legal tradition coincides with views of the modern Western post-modernist to some extent, we found that Chinese scholars can easily accept and seek to develop the West post-modern theory. The specific performance is the loss of legal uncertainty and the decline of formalism, but emphasis on legal uncertainty, judicial activism and judicial law-making. Frankly speeking , there is no short of legal knowledge resources of substantive thinking but lack of formalism thinking. As a result, the current task is to adhere to restrained position and legal formalism.Finally, in the part of the conclusion, I emphasizes on the reason of recgonizing substantive legal thinking and points out that most thinking is substantive in China at this stage, rather than substantive legal thinking. The application of substantive legal thinking depends not only a good environment of belief of law , but also depends on a strict legal system and professional ethics of the professional community. At present, these conditions are still scarce resources in China. If we stand up substantive legal thinking and adhere to the position of judicial activism now, we could return to the position of past times and the rule of law is never a distant fantasy.