| Bacon is not only a great British a great legal thinker, but also holds several important judicial duties over a long period of time. And is a typical representative of a traditional British legal person. Bacon of England is thought to be an important stage of the social nature fundamental changed. The new changes of the times make new demands on science of law. In this historical process, Bacon making himself standing out from the massive talent legal persons and leaving a significant chapter in law science of England in the transition period.The paper constitutes with the introduction and the text, the text is divided into four chapters.The introduction not only deals with the significance of this article, Such as making up the research blank on Bacon’s legal thought in the field of law, Using Bacon as an example to explain some special phenomenon in English law, and realizing confirmation of the traditional features of English law. But also explain the research method of this article, especially the historical perspective and the method of class analysis, providing a theoretical weapon for us to accurately understand and evaluate status and achievements of Bacon’s legal thoughts. At the same time, makes a comprehensive review on research Bacon’s legal thoughts in domestic and foreign. Clearly points out that the common domestic and foreign scholars generally lack of attention to research on Bacon’s legal thoughts.Chapter 1 discusses many factors shaping Bacon’s legal thoughts; including the big background of the times and his personal family environment, life experience, etc. The large background including the British social transformation and legal theory updating, and politician father and new scholar mother providing to Bacon a good family environment, changing career experience also have a significant impact on the shaping of Bacon thought. Getting the Bacon’s law achievements is not only a product of comprehensive personal factors, more importantly, it is also the historical product of the times of change. Only in a historical perspective to study Bacon’s legal thoughts, we can accurately understand its origin and development and objectively evaluate its significance.Chapter 2 discusses Bacon’s Jurisprudence; Firstly, the two section discusses Bacon’s theory of legal method: a new method of induction. The first section mainly explores the theoretical significance of Bacon’s new induction, Based on the detailed analysis of the historical background of new induction method, including Roman law strongly expansion impacts English law, a more difficult situation of common law and feudal kings use Roman law to strengthen the central power. Bacon points out that Roman law philosophy basic deductive logic has three defects, including limited legal coverage, arbitrary inference process and the tendency to ignore the case. Bacon points out the theoretical advantages of new induction correspondingly, including the real combination of reason and experience and concerns on special case justice. Finally the author points out that new inductive method find the theoretical foundation for the case law to survival, fights against the statute law’s impact successfully and defend the case law tradition of England. The second section focuses on the practical use of new induction, taking Bacon’s 25 legal maxims as examples, describes the use of new induction in the law practice in detail. So far as the maxims content goes, procedural maxims are much more than substantive maxims, emphasis on the judicial precedent, maintain the authority of the judge. On the whole, 25 legal maxims content express the method of reason and experience combined, and the empirical and practical legal value pursuit. On this basis, points out a theoretical dilemma of Bacon new induction and case law, how case law to ensure its justice. Finally points out the advantages and disadvantages of each of the statute law and case law, and by learning from each other to develop themselves.The third section mainly discusses Bacon’s theory of human nature, including humanity dualism and goodness dualism two parts. On the former, Bacon believed that human nature has a tendency of evil and also have a tendency of good. Based on this evidence Bacon makes this argument that mechanism of rewards and punishments to people’s conduct to realize the rule by law in society. On the latter, Bacon breaks down good into two broad categories: goodness of the individual and goodness of the society, and puts “personal responsibility” concept in goodness of the society to the king skillfully, to express the king enjoy great authority, at the same time must assume a lot of obligation, Such as exercise power according to law and enhance the welfare of the people. The fourth section focuses on “Calvin case” to explore the natural law thoughts of Bacon, Firstly describes the theoretical trajectory of Bacon’s natural law theory, points out its theory discussion is not sufficient and lack of systemic. Secondly analyzes the main content of his natural law, For example, the human natural state is not free, using the original submission to negative social contract, emphasizing on the value of equality. And then using the famous British "Calvin case" as an example to discuss its application situation in the specific case. Based on this evidence it response to Bracton’s judgment that England law does not pay much attention to the natural law. And points out the national feature of England natural law theory. The fifth section focuses on the positivism of Bacon’s legal thoughts, First of all, explores the two major theoretical foundations of positivist jurisprudence: empiricism epistemology and pragmatic value pursuit. Secondly, summarize the main content of the positivism of Bacon’s legal thoughts, Such as, the imperative theory of law; the legislative body should be political advantage; and refuse to moral judgment of law. Also pointed out that incompleteness in his positivism jurisprudence thoughts and the influence of the case law tradition. In the end, the author puts forward the legal positivism is the empiricism and pragmatism corollary argument, and used it to explain why legal positivism is prosperous in England.Chapter 3 discusses Bacon’s Constitutional thoughts, the first section discusses Bacon’s absolute monarchy constitutional thoughts, firstly describes Bacon’s king “absolute power” concept, Pointing out that the absolute monarchy and the despotism monarchy are two different concepts. Then make a detailed interpretation of the theory of Bacon’s absolute monarchy, including the absolute power of the monarch above the law, factors limiting the absolute power of the monarch. On the former, reflected in the power of the monarch emerged earlier than the law, the scope of its application is not limited to the scope of the law and its position was significantly higher than law. On the latter, containing the power of the monarch operation must depend on the law and intellectual guidance; its implementation must be based on the political virtue. Finally, combined with the Bacon era of British constitutional theory and political reality, then according to the need of social development in the Bacon age England, Criticize the traditional scholars’ negative assertion on absolute monarchy and make a positive affirmation on the contrary. The second section focuses on the king’s privileges dualism in Bacon’s theory. First of all, analyzing from the theoretical background of British Royal privileges dualism, pointed out the king’s privileges dualism is an inevitable product of Bacon era. Then based on the “absolute power” and “limited power”, making a comprehensive introduction to the king’s privileges dualism in Bacon’s theory, Then makes an objective evaluation on its historical status, Such as, implemented breakthrough from the divine right of kings to the legal right of kings, the realization compromise among the main organs of state power, etc. In the end, abstracts the spirit of compromise from Bacon’s Constitutional thoughts, reflects on the lessons of British constitutional road. The third section focuses on the comparison of Bacon and Machiavelli imperial arts, Make a detailed comparison on the similarities and differences in two people’s imperial arts thoughts, On the former, including political avocation on the monarchy, protection demesne belongings and economy of development privately owned, advocating to strengthen state military power. On the later, including Bacon suggests more virtue requirements for politics than Machiavelli, more emphasis on the role in promoting national economy etc. On the basis of comparative analysis, explore the social reason behind the difference. Finally pointes out those countries of different development stage have decisive influence on Jurists thoughts. Section fourth introduced the Bacon’s religious freedom theory in Constitution, Including limited religious toleration and the separation between church and state. On the former, contains avocation religious tolerance within Christianity. Opponent to the wars of religion. But also includes advocating the conquest of pagan war to the expand Christianity. On the later, not only relates to the knowledge level of faith and science are separated from each other, but also includes the political level national and religious division. In the end, taking Bacon’s constitutional views as an example, to explore how religious countries meet in denominational interests, to achieve social stability.Chapter 4 evaluates Bacon’s Jurisprudence and constitutional thoughts, firstly discusses the status of Jurisprudence and constitutional thoughts in Bacon the whole legal system. Bacon’s Jurisprudence constructs the cornerstone of system of his legal thoughts, because the new inductive method is a basic method of system of Bacon’s legal thoughts, and dualism of humanity through his theory all the time. Constitutional thoughts are the core of his whole legal thoughts. Because Bacon’s constitutional thoughts successfully answer the most important constitutional issues of the times, and it has become the label of Bacon’s legal thoughts. Secondly, comments the relationship between Bacon’s legal thoughts and legal tradition of England law. Summarizes five characteristics of the England legal tradition. Including Inductive reasoning mode of thinking, empirical type in legal origin, pragmatic value pursuit, non systematic legislation thinking and procedure priority judicial idea. Lastly, using the above five characteristics to measure Bacon’s legal thoughts, and summarizes that Bacon’s legal thought completely conforms to the tradition of English law and Bacon is a typical representative of the legal person in England. In the conclusion part, briefly review the historical position and the cause of Bacon’s law achievement, in the end, aiming at the relationship between Bacon’s philosophy of law, constitutional thoughts and his whole legal system. And the relation between Bacon’s legal thoughts and British law tradition, author uses two spots metaphor to make a comprehensive summary of the full text’s research value.In conclusion, Bacon is a great jurist and a representative of the legal person in England. His legal thought not only has the distinct characteristics of the times, but also in full compliance with the law tradition of England. Exploration of Bacon’s legal thoughts is a valuable and meaningful thing. For the reflection the legal style in pre modern of England and the whole England law tradition. |
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