Institution Paradox And The Realization Of Law

The life of law lies in its realization instead of perfect forms. The law only acquires realization in real life, and then it can play its due role. Based on the sociology of law, and from the paradox of the crime control of our country, we adopt a multi-perspective, multiple levels to discuss the causes and exit of dilemma of the realization of law systemically. Around the institution pradox of the realization of law at present China, with the crime control for a focal point and a knot (the core content of the research is based on this foundation and discussed for three parts based on this basis), This treatise sees through the institution predicament that hidden behind the operation of law, and reveals the inherent mechanism of this predicament, clarify the operation logic of the law and the institution source of legal fails to realization. From the perspective of institution analysis, the treatise make use of various methods to make a new analysis of the predicament of our law, such as sociology, economics, and the game theory, philosophy...etc.Among the core theme can be summarized as follows: The legal institution is the starting point and fundamental factor of the realization of law. The institution itself is a source of law which fails to realization and also the motivation of some criminal acts. There is an economic logic in the operation of institution. As a kind of predicament of the realization of law,institution paradox is a reflection of the crisis of legal legitimacy. An institution which lack of legitimacy is the basic reason of institution paradox, the exit to solve the problem lies in the alteration of game structure. Passed the game, social members can form a consensus on values from institution design. The audience will subject to recognize and accept the law, and the law will acquire its legitimacy, thereby eliminate the root cause of institution paradox thus to carry out the realization of law. Around this theme, the full text is totally divided into five parts to launch it:Introduction, from an initial understanding of the realization of law, clarify the main issues to be researched, explain the basis for argument and the foundation of theory building, and show the framework and analysis path of the text in advance.In chapter 1, starting from the predicament of the legal operation in social reality, I explain the widespread existence of institution paradox and difficult to extricated us from it. Through the introduction of typical cases, we can see that the realization of law need to a broad legal basis. As an institutional arrangement, the predicament of the legal realization is a profound reflects of the institution paradox.In chapter 2, on the foundation of chapter 1, I take the crime control as a starting point, analyze the crime control from the institution factor, use the game theory and other methods, discusse the creation of predicament in the legal realization(crime control) in detail, explain that institution itself is a cause of crime sometimes. This chapter introduced by game theory firstly, explain that the current crime control of our country had sunk into the "Prisoner's Dilemma". According to game analysis of the two typical examples of "system as a motivation of criminal action" in reality, I prove that whatever citizens obeying the law or breaking the law were all the results of the benefits weigh which they pass to the leagal institution. This analysis reveals the economic logic of institution paradox from the perspective of institution; it also provid a kind of new strategy for crime control. But if we want to get away from this "Prisoner's Dilemma" of crime control, the only way is to change the structure of the game of crime control, that is to say, change the rules of the game. Meanwhile, it shows that whether a person obeys the law is also a game.Chapter 3, from a philosophical perspective of the institution further reveal: institution paradox is a result of the crisis of legitimacy of the legal institution, criminal in institution paradox is one of the social members'resistances of legal legitimacy crisis. So if the law wants to acquire its legitimacy needs to all social members form a value consensus in the continuous game that can get the audience's acceptance and recognition. Firstly, this chapter analyzes the crime and its legal motivation in institution paradox. We think, whatever the form legitimacy or substance legitimacy of law were all perhaps became the motivation of crime. Then we see, our legal institution is not only faced with the lack of legitimacy of the form, but deserves more attention is the substance legitimacy crisis of law. Secondly, on this basis, we clarify the reconstruction of legal legitimacy, from the two aspects that conversion of legal cognitive perspective and the formation of value consensus demonstrate on how to ensure the legitimacy of the law. And then we put forward the proposition of "control the crime control". Among them, we emphasized to discuss the formation of value consensus. We think that the formation of value consensus needs all social members'continuous game, In order to prevent and cure the adverse effects like institution paradox of such non-cooperative game, we must strengthen the system construction, and perfect the related systems of the rule of game, passing the system's innovation to make the related corpus implemented an effective game equilibrium. So the game theory provides a kind of possible way to solve the problem of legal legitimacy. Ultimately, we take the reflection of our legislation as the end of this treatise. The thesis think that only let the subjects of diverse interests participate into this lawmaking game well, make various interests in legislation to achieve a balanced through repeated game, make the legislation really reflecte the best interests of the greatest majority of people. Ultimately it can be form a legal consensus on the value of the audience, acquire most social members'legal recognition and acceptation and legitimacy of law itself. So that perhaps carries out the realization of law.Conclusion, through the further generalization of the previous chapters, finally I get the conclusion: We should completely reexamine the institution paradox of law through legitimacy problem which take away the illegal factor of law itself possibly, make the benefits and value of law audience to get expression and body more in the law possibly, once the lawmaker and social members can form a worth consensus, the people's widespread reorganization and acceptance of law will be formed, the legal motivation of criminal may disappeared, the institution paradox in realization of law may be overcame.In the verification process of the full text, the legal institutions is always a special link between crime control and legal realization—see from the surface, the paradox of the crime control is the result of rational choice of social corpus under the incentives of institution. But in the deep-seated side, what to hidden were the query and resistance of the institutional legitimacy of social members. It is narrow the field that research on realistic legal operation with the perspective of institution, thereby compress crime control, paradox system, legal realization at the point of institution, and research on the realization of law starting from the crime control, we may entirely possible perceive some deep-seated problems of the reality of the whole operation of law. So this treatise from the perspective of system analyze and explaine the interests'structure of social members in the legal context and why people don't obey the law such issues in detail that provide a new perspective of thinking of legal system design for our country.