The Study Of Legal Order

This work is an introduction to a general study of legal order, and the purpose of the dissertation is to gain a more detailed and profound understanding of the theory of legal order, and to explore some of the difficulties involved in tacking them. In studying so complex a system comprising so many functions, to what sorts of data ought one direct attention? What categories should we use? Here we put forward a bare-bones outlines of a model that we find useful.Firstly, we start from the reason why the existence of a legal order was necessary, in another words, the function and identity of legal order. What are the criteria which determine the existence of legal order? And how can we distinguish the legal order from the general order. The dissertation is concerned with the first three problems only, and only in so far as they belong to the general theory of legal order. The three most general and important features of legal order are normative, institutionalized and realizable/maneuverable. It is normative in that it services, and is meant to serve, as a guide for human behavior. Its application and modification are to a large extent performed or regulated by institutions. And realizable/maneuverability in that enforcement are internally guaranteed, comprehensively by various factors.Secondly, normality of legal order. The emphasis on these three features of legal order is the first important factor which we share with legal positivism—those of Austin, Kelsen, Hart and Raz. And their views provide tremendously positive contribution to the theory of legal order by defining the basic spectrum of law in three perspectives. In the first place, Austin and Hart illustrated the validity resource of law. In the second place, Austrian, Kelsen depicted the hierarchy of legal system. And in the third place, Bentham claimed the object of law was just human behavior by the theory of utilitarianism. Through of these, it is safe to say the code of legal order, law, is a rule system which made by the sovereignty, configurated seriously, and mostly focused on the human’s behavior. However, the realization of the rule of law, the legal order is supposed to obtain the assistance of legal institution, especially in consideration of the Chinese reality, which does not pay the appropriate attention on the construction the institution.Thirdly, legal order in idea. Through making laws by the legislature, legal order establishes the common behavior standard. Then, the abstract common behavior standard will be implemented to the specific cases by the courts. Finally, in order to realize the legal order, all the legal rules and adjudication should be enforced and ensured by the administrative agency. However, this is only a beautiful dream. Firstly, even setting the limitation of human knowledge, law is only one the limited human knowledge, and cannot afford the whole responsibility for controlling the human life. Secondly, in the procedural of pursuing professional certainty, the costs of maintaining order is growing gradually, and if the costs is approaching the critical point, the situation may develop to the contrary direction. Finally, the rule of process is not well compatible with the traditional Chinese culture which pays more attention on the substantial value, so it is quite hard for the law to establish the favorable social order in China. Thus, in order to acclimatize the Chinese special situation, the appropriate measure and adjustment should be adopted.Finally, legal order in reality. If the legal order longs for playing an important role in the specific and practical area, it is supposed to acquire the strength from the other social system. Thus, the construction of legal order should get well along with the other social subsystem positively. Among all of them, the culture, politics and economics should be highlighted. About the traditional culture, we need figure out what kinds of the factor in Chinese traditional culture are the obstacles in the procedural of construction of legal order. Then the politics, we should consider more about its organization, the hold of power and resource, and certainly, the check and balance between law and politics. All of these are of the utmost important in the well realization of legal order. Finally, the function of economical factor to legal order is beyond the words already. Not only the "rational people" in economics complies with the discussion which depicts the relation between the form of order and the human beings "pursuing advantages and avoiding disadvantages", but also the "Game Theory", especially the "long term Game Theory" supplies the theoretical foundation for legal order. And finally the "transformation from citizen’s property rights to power" plays an explicit role in modern time which especially requires the check and balance of power. In addition, the other social norms also have important effect on the aspect which helps legal order accepted by the regular person automatically.Last but not least, I should emphasize that, no matter what the type of legal order, ideal type or realized type, legal order is not the legalization of social conflict or social interest. Political decision belongs to political system, economical judgment depends on the logic of economic system, both them can be used as stimulative factors, but cannot be deemed as the crucial element, and cannot enter the legal system to change the essence of law directly. What can effectively and essentially decide the reform and development of legal system is the legal logic itself. The slight change of legal system is not the direct result of social environment, but the product of a covert, and intangible communication between legal system and social environment. In order to be one part of legal order, the social environment should be reconstructed to the code of legal system, then enter into the interior circulation of legal system.