| Number plays a very important role in both provisions of law and enforcement of law.Furthermore,there is also the tendency of more and more dependence on numbers by law currently.This dissertation starts from number and philosophical analysis of number,and tries to elaborate from the two perspectives of internal mechanism and external constraints.On one hand,number originates from the need of measurement,number is both the order existing objectively and artificial tools,the former one defines the accuracy and formality of number,the latter one brings the uncertainty and maneuverability to the number.Similarly,number is both the empirical science and deductive science,and with the characters of both tool and culture.Science and rationality are the appropriate application of math,however,math is not panacea,and excessive application of math without limitation will lead to the misunderstanding even the loss of human nature.One the other hand,although the application of number in legal legislation was very common in the history,the universal number-oriented in legislation becomes available only after the quantification of nature,monetization of economy,scientization of social theory,rationality of modern civilization,mathematization of legal culture.Based on the above-mentioned acknowledgement,this dissertation claims that the objectivity of number has provided a balanced standard for legal evaluation and the simplicity of number has provided a sign tool for the legal expression.The calculability of number has provided the operable rule for the realization of legal order,the number used in legislation has enhanced the objectivity,scientization and completeness of lawn and its implication in the enforcement of law lies in the constraint on and protection of the discretionary power.For the purpose of analyzing,in depth,the implication of number used in legislation,this dissertation has studied on both the penal law,in which number is most frequently used,and the civil law,in which number is least frequently used,and has concluded,after thorough study on penal law,that the majority of crimes in China's penal law has the quantization requirement which is used to assure the unified conviction standard and to enhance the operability of penal law,however,the universal application of number in conviction has not only confused the boundary between the crime and non-crime,but also resulted in the substantial inequality.This "Chinese characteristics in criminal legislation is actually the embodiment of backwardness in legislation.After thorough study on civil law,this dissertation has concluded that number is rarely used besides restrictive clauses in civil law,and the reason for this is due to the four key elements in civil law,which are the abstraction of personality,the absolute protection of property rights,the autonomy of will and the liability of the party can be realized without number-oriented provisions.After the comparison between the public law and private law,this dissertation has figured out that most number-oriented provisions are related to the national compulsion,efficiency first and basic economic system,and therefore,number is strictly used in comparison with public law.This dissertation further points out that the uncertainty in law can not be completely eliminated,and such uncertainty has even positive consequence.The over-application of number in legislation will be detrimental to the flexibility of law.It is more practicable to seek the certainty during the enforcement.Therefore,the enforcement of law depends more on the number during the legal proceedings.Let's take the example of number used in sentencing,a lot of experiences and lessons have been accumulated during the practice of law,number plays an active role in regulate the discretionary power of judges,in application of unified code and in enhancement of acceptability of judgment result,however,number has also narrowed the judgment room and causes the independence of jurisdiction.In the summary,this dissertation points out that the appropriate usage of number is necessary,but the abuse of number should be precautious.Where is the boundary of number used in legislation?It is impossible to find out the defined index for using number in legislation,and this dissertation will try go back to starting point of the philosophy of law and tries to ascertain the relationship between law and number from multiple perspectives.Law may permit using number in legislation,however,the value of law can not be realized by number.This dissertation has elaborated the number-oriented law not only in the field of philosophy of law,but also in the fields of civil law,penal law,economic law and other legal branches,and its unique academic accomplishments may rest in the following aspects:1.Explain the internal mechanism of the combination of law and number from the perspective of philosophy.On one hand,the ambiguity in reality compel us to reach the accuracy from the number,and the order in reality makes it possible to express law through numbers.On the other hand,the character in numbers agrees with the objectivity that law is in pursuit of,and the operability required by law can be satisfied by the function of numbers.2.The significance of number used in legislation is that as the main approach to realizing the legal methodology,numbers infer the scientization,objectivity,and justification in law.The number used in jurisdiction is to regulate the discretionary power,to limit the room for using such power.But in the meantime,set up a "fire wall" used to fend off the administrative power and improper other interferences.3.The mainstream theory on separating the public law and private law has not touched the number-oriented legal versions,but the huge distinction between the public law and private law on this point is worth researching.The different degree of using numbers in public law and private law is due to the fact that public law emphasizes more on national compulsion,protection of public benefit and efficiency first.The doctrines of freedom of contract,absoluteness of ownership and liability for wrongs need not,and can not be represented by numbers.4.The number used in law is to enhance the certainty of law,but may do harm to the flexibility of law.Numbers need no interpretation,but law must be interpreted to applied on specific case,the abuse of number in legislation do make the law rigid and superficial.5.The over dependence on numbers during legislation will lead to the substantial injustice in the judicial results,the judicial results obtained through abandoning independence of justice,distorting neutrality of justice is unlikely to reach the fair judgment.6.The number used in law is limited,relative.The character of law needs the numbers as tool,however,human nature can not be measured by numbers.Over number-oriented inclination that breaks the necessary limit will result in the abuse of utilitarianism,instrumentalism,formism,scientism in law. |
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