Researches On The Irrational In The Operation Of The Law

Based on the existence of human beings and the spirit of mankind, and guided by the Marxist Material Conception of history, this thesis sets the premise that rationality has a dominant role, stars off with the unity of rationality and irrationality, and focuses on the systematic researches about how irrational factors influence human beings in the process of operating the law. The key argumentation of the thesis is that human beings should be rational when they are dealing with the law as we have been thinking that rationality is one of the important features to distinguish us from other animals. However, it is a pity that there are some limits in the cognitive system of human beings and the irrational factors undoubtedly influence our thinking and social practice, just as the Behavioral Economics, which rises in the middle of 20 century, challenged the rational Human Being Hypothesis of the traditional economics. So the irrational factors of human beings will inevitably influence the thinking and the behavior results of human beings in the operation of the law. The thesis is divided into four parts:Chapter one mainly discusses questions related with rationality and irrationality from academic viewpoints, which lays the good foundations for the following chapters. Firstly the author defines rationality and irrationality by combing history and reality. Then dialectical relations and the value proposition between them are analyzed. The author.emphasizes that human beings are the combination of rationality and irrationality in the social development and there is no pure rationality or irrationality. These two factors are inseparable from each other while one is in the dominant role and the other is in the subordinate role. Secondly, the author discusses why irrationality should not be marginalized and analyzes the competition of rationality and irrationality in the history of the Western philosophy and the change of irrationality to “negation of negation”. Moreover, the author explores the functions of irrational factors in promoting “the real human beings” and “a whole man” and their development in reality. And researches of the ways and strategies of how to guide irrational factors correctly in the legal construction are studied. Thirdly, the author summarizes how to sublate irrational factors in social legislation theoretically. The author points out that both the development of positive aspects and the weakening or restraint of the negative points in irrational factors could not be made in a short time. It is essential to have a long and repeated procedure for irrational factors to be developed positively.Chapter two mainly deals with the irrational factors in legislation. The author first reviews the relationship between law and rationality in the history of Western legal philosophy. Beginning from legislation and legal philosophy of rationality, the author discusses the relationships and interactions between legislation and rationality in practice, legislation and rationality of cognition, legislation and rationality of value, and legislation and rationality of communication. The author points out that rationality of human beings and the construction of legal system complement each other. So rationality of human beings can not be neglected in the establishment of Ruling the Country according to the Law. Then the author studies the reverse phenomena of irrationality in the process and multi-steps of legislation. The cases of Prohibition of Alcohol in America and Prohibition of Fireworks in Beijing are reviewed and the author draws the following conclusions: legislation should not steer away from the dominance of the rationality of the law, human factors in the law should not be neglected in legislation, and in the enforcement of the law there should be no negative potential threats, which are caused by legislation. The author pays more attention to analyzing the expression of irrational factors in the legislation of our nation. And the following findings are discovered: there are some drawbacks of rationality in the decentralization of the legislative authority, the democratic principles of legislation can not be completely obeyed in the rules of legislative procedures, and there are still some shortcomings in the rules of legal interpretation. Based on these findings, the authors argues that the problems in the legislation of our nation are closely related with the limits of the lawmakers' rationality and the objective influences of irrational factors. Irrationality can influence quality of legislation, efficiency of legislation and operation of legislation. Furthermore, it can influence the authority of the legislatures. The irrational factors that may influence legislation mainly include: the missing of the knowledge system in the lawmakers, the influences of the legislators' preference, the absence of information collection in legislation, and the distortion in the transmission of legislative information, etc.. Thirdly, the author explores the strategies of how to overcome and amend irrationality by using legislative rationality. The authors stresses that the negative influences of irrationality in legislation can be overcome and amended by legislative rationality. And the remedies lie in the following aspects: improving the ability of people from different interest groups to participate in legislation, broadening ways for people from different interest groups to participate in legislation, and improving the system of the game theory in legislation. In summary, there must exist irrationality in legislation, which may cause some negative influences in the the process of legislation. However, these negative influences can be overcome and amended.Chapter three is about the irrationality in legal capacity of human beings. Firstly, the author begins with the hypothesis of rational person to analyze the correlation between the principle of Autonomy of Will in the private law and legality of rational man. And the author points out that the construction and the standards of legality of rational person sets rules for discretion, which can prevent the scope of autonomy of will from being reduced by peremptory norms and make autonomy of will the key feature in juristic acts. Secondly, the author studies man's behavior in the classical case of Game Theory, the Prisoner Dilemma, and tries to prove that an individual in reality is actually a mixture of rational and irrational behaviors. The author tries to confirm that the behavior of an individual in the Prisoner Dilemma of Game Theory can not be “complete rationality” and can only be “limited rationality”. That reflects the conflicts and differences between the individual rationality and collective rationality of human beings in social behaviors, which also shows that man must choose the law to regulate the game of different social groups. Thirdly, the author makes an effort in analyzing how conformity effect of limited rationality can influence the legal acts of human beings. Specifically, the author explores the causes of conformity effect, the influence of conformity effect to the law, and the strategies in correcting the conformity effect. The author stresses that we can avoid the loss caused by blind obedience through developing rationality scientifically and distinguishing right from wrong by using rationality. Finally, the author investigates the irrational bias of individual behaviors and analyzes some individual or group irrational social phenomena, such as “Crime of Passion”, “Believing in Petition instead of the Law”, and “Protesting rights by extreme means”, etc.. The authors holds the idea that the problems can not be solved and the claims can not be resolved if such irrational behaviors are not constrained effectively. Furthermore the social resources are wasted and the society are made unstable under such cases. Thus it is not difficult to understand different kinds of irrational acts of individuals in legislative life of society as there are always some irrational biases in individuals.Chapter Four is mainly about the irrational factors in judicial activities. First of all, the judges are the real practitioners of the law. They do not have any privilege in practicing the law at their own will, and not to mention the freedom of applying the law randomly. At the same time, the legal thinking of the judges is the practical rationality or technical rationality of the law. According to the general principles of jurisprudence, there are two basic topics in the judicial trail: judging the facts of the case and implementing the relevant law. Generally speaking the judges have to follow the ideal logic in making their judgment. They must strictly obey the syllogism of reasoning, the Major Premise ? Minor Premise ? Conclusion, and then make their verdicts. In judicial practice, some negative influences will appear in judicial justice if we neglect the interference of irrational factors to the judges. Secondly, the author studies the irrational thinking of judges in the trial activities and criticizes the the influences of “rationality is justice”, the absolute justice of legal positivism. We have to acknowledge that judges are also human beings. The external factors in the trial activities of judicial practice, such as the acts in the code, physiological impulses, prejudices and antipathy, will undoubtedly have some kinds of stimulation on the judges' personality, including characters, preference, habit, and institution, etc.. The irrational factors formed from the above elements will influence the judge's fairness and justice in the judicial activities. Thirdly, the author makes a concrete analysis of “personality and prejudice” of the judges that may appear in the judicial trails. As a group, the judges are not the spokesman of rationality. Although the judges induces carefully, demonstrate the case and draw the conclusion in their judgments of judicial trials by strictly obeying the rules of the law, the school of realistic law still hold the idea that the dominant factors in a judgment are the institution and the premonition of the judges. As an individual, the essence of judges' judgment is a kind of decision behavior, which can also be considered as the thinking process of human beings. So it can be easily influenced by some irrational factors, such as “bias from intuition”, “anchoring effect” and “emotional factors”, and so on. Finally, the author puts forward some strategies in overcoming the irrational thinking deviation in judicial trials. And the author stresses that we need to set up the right judicial principles, strengthen the principle of “in dubio pro reo”, promote the principle of eliminating the illegal evidence, and establish the reasonable criminal justice system. All in all, the irrational factors may make a difference in the judicial trials. And it is hard to say that the irrational factors must have side effects in the judicial trials, but they can surely mislead the judges in making their decision. So we need to pay more attention to them in both of academic and judicial fields.In Conclusion, the author thinks that the relationship between rationality and irrationality can be compared to a piano piece while rationality is similar to the key note and irrationality to the supporting note. It is really difficult for us to evaluate whether the irrational activities of thinking are good or bad. The social practice of human beings not only includes the rational activities, and the irrational activities are also included and they play certain rules in it. The irrational factors can integrate into the social practice with their unique cognitive abilities. They may promote or hinder the social practice. In the field of the law, irrational factors are closely related with activities of operating the law, such as law making, law abiding, law enforcement, the administration of justice, and law protecting. In the background of constructing China ruled by the law, it is essential to research and guide irrational factors. By doing so can we make Chinese people more reasonable and enthusiastic, the development more scientific and the society more harmonious.