On Responsive Law

In the 1960's, the American social was undergoing great changes, the social problems endlessly emerging in lead to legitimacy weakened, law and society movements both promoted the booming of law thought, the Berkeley School responded to the ages' calls, put forward Response Law Theory. The theory's main idea was concentrated in their works of Law and Society in Transition: Toward Responsive Law, it is a new way of thinking which resolves American social realistic problems. The Berkeley School hopes to combine legal theories with realities, so as to integrate jurisprudence and sociology academically, and to solve law and legitimacy crisis practically, and to resolve social problems in the actual worlds.Selznick and Nonet, the main member of Berkeley School elaborated responsive law through Law and Society in Transition: Toward Responsive Law. They believe responsive law is the common points of the social science strategy and the law developmental strategy, its attribute is to decrease repression but to strengthen the cognition, activity and openness under the purposive leading, through the responsiveness of law to carry out interaction of openness and integrity of law, that is, guiding in the purpose law response social, carries out substance justice, public interest and civilization ideal, becoming legality (rule of law) foundation.Responsive Law is aims to resolve social problems, it integrates theories. Responsive Law inherits the main thoughts of Legal Sociology, such as Max Weber's ideal-types theory, Pound's social control, social engineering and the purpose of law, etc; it is also be influenced by Unger's three kinds of ideal-types and the crisis of rule of law; and it absorbs Natural Law and Positive Law; and finally forms by the Berkeley School while they are seeking to resolve social problems, that is Responsive Law.Berkeley School through the research of three kinds of law ideal-types, Repressive Law, Autonomous Law and Responsive Law, announcing to public the main contents of Responsive Law: 1, The predominant position of purpose: the purpose in Responsive Law became a communication bridge of the value and reality, the ability to strengthen the flexibility of law, to make law to be cognition and activity, reduce an intervention and repression, carry out the legality of law. 2, The interaction of openness and integrity: the Responsive Law under the purpose guiding can make the law openness and integrity to be moderated mutually. 3, Various paths of rule of law: Responsive Law is not for replacing to once be seen as the rule of law of Autonomous Law, but for investigating the road of perfect rule of law, Responsive Law is the different side of rule of law.But Responsive Law of Berkeley School not only stay around to the inheriting of tradition theories, it also on reflecting to traditional jurisprudence and sociology, and stated the special content of Responsive Law, displayed a new angle of view. As a result, Responsive Law had the characteristics of oneself: 1, Instrumentalism of value mindset: Responsive Law not only is an pure tool, and also is the concern of value and purpose, differs from Max Weber's rationality, also objects to Black's the Sociological theory of the Pure of Law. 2, Natural Law integrates into rules: Natural Law integrates into Responsive Law, because moral and value can't be ignored in the rules system and positivist study. 3, Pluralism law: Responsive Law doesn't agree with to the rules of nation as the law only, but the social control of the authority to be seen as the law. So it differ form Pound's and Black's law, and differ form Unger's thoroughly negative law.4, Pluralism legality: comprehension to legality is openness in Responsive Law, substance justice and society realities is integrated into legality, the more continuous of law is important, because it can be carry on reform on Autonomous Law.However Responsive Law isn't a faultless ideal-type, it may send back Repressive Law, even make withering away of law. Responsive Law's realization possibility is insufficient, because Berkeley School didn't provide a thoroughly theory to clear the contact of law-related variables, the inner dynamic and external conditions; and involved the purpose in responsive law also is questioned in many ways, because of value and enforcement exist an antinomy, it have a hard to operate to the popularization and specific of the purpose while facing diversified trend and political advantage; the confrontation of Responsive Law and formalism lead it to the misjudgment of the procedural justice, also influence the realization of the substantive justice in the reality.Responsive Law has many defects, but it can be reformed and improved, Gunther Teubner's Autopoietic System theories and Reflexive Law have already got fulfillment in the reality, it opens a door of hope for the improvement of Responsive Law, that is: the law basis standard is decided in participate, the social needs is checked by law, the social problem discuss by law, draw up law, the law organization deal case by the way of law, in addition the legal education and the legal studies can't be neglected, and above all to promote a social development by regulating law. Certainly, the purpose of Responsive Law can't be abandoned.On the other hand, Responsive Law can't to be adapted to us completely, because Responsive Law is American social ideal, it is the solution of American rule of law problem, with our country's background don't exert a homology, and it is not applicable to completely our country. But Responsive Law allows the existence of different degree of rule of law, and allows our rule of law to differ from an absolute formalism of rule of law, and it can to be carry out by oneself path in our country. In the meantime, Responsive Law also implies the concern to society, it requests the overall response toward the social needs, the society needs should be responded by law in the previous and the after of law, even the value should be responded by law. As for how to carry out, Responsive Law also gave answer, it is to be guided with the purpose in the legislative, judicial and enforcement, and to reduce to repression but to increase legality, and still need to follow the internality movement rule of law, the demand to combine legal theories with realities, so as to we resolve legal problem and social problem in the meantime.By discussing Berkeley School's Responsive Law, we can view the content of Responsive Law, also discovering the influence of the purpose of Responsive Law to the law legality, openness and integrity, it can make us treat law and society from a new angle of view, and it is the purpose of this paper. This paper uses the method of analysis, comparison and posivitive, begins from the social background of Responsive Law, explore the main origin of Responsive Law, generalize main contents and characteristic of Responsive Law, and discuss the special place of Responsive Law, analyze the gains and losses of Responsive Law, explain the practical significance to our law.