Form-oriented Mode:on The Theory Of Legal System Of Robert Summers

What is the nature of legal system? This is one of the long-standing problems of Western jurisprudence.To describe and to prove the legal systematic property was both the axiomatic premise in constructing legal theory,and also the greatest common divisor of law schools and theories.To answer this question,from the pure legal which was representative of Hans Kelsen,to the analytical positivist represented by H.L.A.Hart and Joseph Raz,finally to the institutional positivism of Neil MacCormick and Ota Weinberger,these scholars have put forward their own theory of system.Unfortunately,under the influence of the stated legal theory,the definition of law has been strictly limited in the normative field,which led the scholars,when dealing with the problem concerned with legal system,to regard normative claim as the orthodox approach.It is evident that the law is not only a set of normative system,but also a complicated social system or organization.Different from the simple rules of governance,the creation,revision and application of law reflected evident institutional and dynamic characteristics.Due to the limitation settled by normative category,the diversity of legal phenomena has been either disregarded as the departure of basic material for theorizing,or been inconveniently shaped into the conceptual straitjacket of the purported normative framework.Despite the crude identification of legal system with normative system made by such stereotype,the claim held by analytic theories obscured its inherent difficulties resulted from the heterogeneity of varied legal unites.Therefore,it is particularly necessary to reflect on the dogmatic normative analysis from the perspective of the general theoretical level,so as to break the barriers inherent in the norms and inherent barriers.The object of this Dissertation is the theory of legal system offered by Robert S.Summers,one of the famous American jurists,as well as the form-oriented approach contracted,as he himself did,to the traditional methodology of jurisprudence.Summers has not only put forward a fresh conception of system,more importantly,with the provisions of the definition of form,Summers also expanded the systematic components at the same time,which made the legal system free from ossification of traditional style of western jurisprudence.In view of the fact that analytical jurisprudence is the most mature school in considering normative system,the first chapter of this thesis takes the Anglo-American legal theory as the departure to demonstrate its frustration and confusion in the face of the mixed legal phenomenon.The closure inherent in normative system made its inability to explain the existence of varied legal phenomena.The normative system itself not only fell into logical contradiction,but also beset with finding cornerstone of the legal system characteristic of many complicated elements.In the second chapter,after a comprehensive investigation of Summers' theory background,the ontology of legal system which is different from the normative system is expounded.On the basis of legal instrumentalism and legal process school,he has successfully replaced the law into dynamic operation played by legal functional units.The renewed definition of the legal system updated the internal elements recognized by legal system.Now that the law is complex and stable social organization rather than out of disordered experience phenomenon,how to explain the characteristics of legal system instead of the framework of normative system after the reconstruction of composition and internal structure in a legal system,is the natural question to be answered with a new framework.Therefore,the focus of the third chapter of this paper is to point out the deep meaning of form established by Summers.This demonstrates that his form-oriented position can be seen a correction of the shortcomings of normative doctrine.The fourth and fifth chapter will explain how theory of the system is carried out under the form-oriented analysis by the use of comparative method.With the tool of legal form,Summers sheds light on varied structural relations between each component in the function of legal system,puts forward a self-consistent theory of system,and presents a new picture of legal system,which overcome the fragmentary of normative perspective.In the sixth chapter,the value dimension of the form will be considered,which makes it a reasonable standard to evaluate the current operation of legal system.In the conclusion,the issues pertain to the formality of law and the theory of legal system proposed by Summers will be summarized.By understanding the intention of his emphasis on form,the contribution to a general theoretical research concerning legal forms and the subsequent theoretical space will be stated.