From Formal Rational Law To Responsive Law

The thesis surrounds the comparative study of the theory on legal types of Weber, Selznick and Nonet,and the complementary of responsive law to formal rational law is the mainline of the thesis.There are two standards to penetrate the theory of Weber's legal types that are "formality" and "rationality".Based on the two standards,Weber partitioned the legal system of different nations and countries in the human history into four types,which were formal irrational law,essential irrational law,essential rational law,formal rational law.In the 1970s,Selznick and Nonet started with the interactive relationship between the law and society and adopted the research strategy of social science to partition the legal system into three types,which were repressive law,autonomous law and responsive law.By comparision, there are two different aspects between the theory on legal types of Weber,Selznick and Nonet.First,the perspective is different.The perspective of Weber's legal types is the rationality of the process of the law;the perspective of Selznick and Nonet's legal types is the relationship between the completeness and openness of the law.Second,the methods of research are different.The theory of Weber's legal types is set up under the guidance of the "ideal type";to some extent,Selznick and Nonet also drew on Weber's methodology,but they adopted a strategy of social science research and emphasized that the law was variable and occasion in nature.So they brought a thorough study on the law and put focus on the interactive relationship between the law and society.Based on the discussion of the above,the complementary of responsive law to formal rational law is the end-result of the thesis.There is a high degree of autonomy in formal rational law.By applying the method of abstract logic analysis,people could get the decision without the help of the factors,such as politics, religion or morality.To certain extent,the autonomy of law also creats the closeness of law. The law as law has nothing to do with politics,religion,morality and emotion and is also independent of the social needs and the legal effects.In the waves of the development,we could image what kind of fate would the formal rational law encounter? As a regulation means,the law is inadequate to achieve substantive justice.In the aspect of resolving the basic issues of social justice,the law highlights its powerlessness.At last,the law runs into a crisis.In this crisis,Selznick and Nonet put forward responsive law.In the legal system of responsive law,the autonomy of the formal rational law by isolated from the world disappears. The law is no longer bound by the formality.The law becomes to adapt to the social changes flexibly,respond to the needs of the community positively and contribute to the achievement of substantive justice.Responsive law relieves formal rational law from the crisis.Therefore, responsive law is complementary to formal rational law.