"HaiRui Laws", Common Sense And Hard Case: The Reanalysis Of SuLi And Sang Benqian's Theorem

Hard cases in judicial process,though less but have important significance. In handling of hard cases of appropriate and reasonable processing,not only reflects a nation's wisdom,but also a nation getting into or maintaining orderly society,and also at present in China into a ruled society must be solved.In dealing of hard cases,there are various methods and approaches in history or nations.In ancient China,Ming,HaiRui also summarized his handling hard cases of experience and methods,which have been summed up as "HaiRui Laws",and have been tried to their generalization by SuLi.Then,SangBenqian has developed them in technology and system,and has put forward the new "HaiRui Laws".This paper will analyze them both in theoretical and empirical perspectives,pointing out their reasonability and unreasonability,and through the introduction of the "common sense" trying to reinterpret "HaiRui Laws", though not providing a new but simple and pragmatic method for hard cases.Besides preface and conclusion,this paper has four chapters.The first chapter will briefly introduce the "HaiRui Laws" of SuLi and SangBenqian.The second chapter will analyze whether they are reasonable or unreasonable from subjective utility and happiness,and will suggest the further improvement.Through the introduction of SuLi's subjective utility comparison,the third chapter will analyze the SangBenqian's "HaiRui Laws",and will find that theirâ…¡C,D and F are not reasonable for subjective utility comparison.And through the "sunk costs rationality" and "fairness",we will find that his analysis of "abstract victimized probability" superior to "specific victimized probability" is not established,which needs to concrete analysis in reality.In addition,the third chapter will also analyze the superiority of the judge's "common sense inference" to SangBenqian's "HaiRui Laws". Through the interview with judges the chapter four will show that whether SuLi or SangBenqian's "HaiRui Laws",judges seldom consider them in reality, but they sometimes have to consider the "common sense".Then it will analyze the reasonability and simplicity of "common sense inference" as the "simple heuristics" from theoretical perspective.