Research On Frank's Legal Thought

Legal realism is such a school of view, attitude, and approach that is concerned with reality, and carries out legislation, law enforcement, judicatory, and legal theory development from reality and according to reality. The movement of legal realism, as an important school of legal thought in the field of American legal theory, upholding reformative and innovative spirit from its birth, made trenchant criticism on American traditional legal ideology, especially the dominant conceptual law, and put forward a set of brand new paradigm of legal thinking: to follow "law in reality" instead of following "law in book", and to follow judicial practices of judges instead of following the function of legal rules. As a major representative of this school, Frank integrates then popular American pragmatism and research results from Freud and Piaget, criticizes the "basic legal myth" which had been popular for a long time, and advances the realistic legal theory which sets uncertainty as its core, rule-skepticism and fact-skepticism as its entity, and judges' individual judgment as its conclusion. The present thesis, taking an approach of historic examination and sociological analysis, intends to do an integral research on Frank's realistic legal thought.Chapter I takes a historical and social examination of the roots of Frank's legal thought. First, the social background in which Frank's legal thought took shape is introduced. In that period of 20^th century when the world economy especially American economy was stuck in the great depression, people not only began rethinking the empirical analysis law from Bentham to Kelsen, but also reexamined the natural legal philosophy which emphasizes abstract value and justice. Legal experts began to do their research combining law with other relevant social subjects including economics, and take close look at the present judicial situation, so that they can give new valid explanations to newly appeared social phenomena and the issues of how the law could function properly. Therefore, with the legal economical movements advocated by many economists in the US, the movement of legal realism came on stage. Next, the thesis makes an inspection of the theoretical roots of Frank's legal thought. His thought came directly from Holmes 'pragmatist law, which can be seen from Frank's high comments on Holmes. The other two theoretical origins were the psychological theories of Freud and Piaget and the "living law"theory of Ehrlich, or the liberal legal movement in Germany. Finally, the thesis presents the influence of Frank's legal thought on later ages, and the author holds that the post-modernist law represented by the school of criticism law is a direct continuation of Frank's legal theory.Chapter II surveys the main ideas of Frank's legal thought. Starting from analyzing the ways of children's thinking mode, Frank points out that children's thinking is a kind of wishful thinking whose main characteristic is to seek a sense of steadiness and security. First, in his " rule-skeptics", Franck criticizes the "basic legal myth". He points out that, to a large extent, the law always has been ,is now, and will ever continue to be, largely vague and variable. But the uncertainty of law is not an unfortunate accident: it is of immense social value. Frank asserts that modern civilization demands a mind free of father-governace; if law should meet the need of modern civilization, it must adapt itself to the modern mind; man is not made for the law, but the law is made by and for men. Frank thinks that law is either (1) actual law, that is, a specific past decision, as to that situation, or (2) probable law, that is, a guess as to a specific future decision. Next, in "fact-skeptics", Frank points out that judicial judgments, like other judgments, were conducted through reverse reasoning starting from pre-designed conclusion under most circumstances. The specific quality, character, prejudice and habits harbored by specific judges are often determining elements in his judging process. Finally, in his law reform theory, Frank attacks the judicial system in the US, especially the 23 traditional views related to trial courts . Consequently, Frank puts forward the 13-point scheme which is meant to reform American judicial system and legal education. In teaching, Frank denied Langdell's "case method" and attaches importance to improving students' legal practice skills, exerting deep influence on American legal education and future.Chapter III makes a comment on Frank's legal thought. The thesis points outs its theoretical contributions as well as the weak points in his theory. Drawing on Frank's approach of psychological analysis, the thesis proceeds to make an analysis of the social psychological cause of the lack of systematic wisdom in China, and proposes two suggestions on China's legal education by taking in and learning from Frank's ideas of legal education. Finally the thesis elaborates on how Frank's legal thought should be viewed and approached.