Research On Status Of The Legal Doctrine In Source Of Law

The legal doctrine, as a form of legal sources with authority and systematicity, has played a certain role since ancient times in the judicial process. But it is seldom researched by the domestic academic. But in the trial of cases the legal doctrine is often cited to make up for the legal gap or explain the law to enhance the convincing of the trial result. Thereby, the problem about the legal status of the legal doctrine can be not ignored.The article is divided into five parts. The first part is raising questions. If we want to confirm the status of the legal doctrine as the source of law, first, we need to choose one definition to be applied in all kinds of definition about "source of law" Secondly, we need to define the cognition and extension of the legal doctrine and distinguish "the legal doctrine", "jurisprudence", opinion of jurisprudential scholar etc. The legal doctrine plays an important role in the judicial trial and provides a basis for judicial trial. But there is still much controversy on the status of the legal doctrine in the source of law. The question whether the legal doctrine is the source of law is needed to be solved quickly.The second section is to elaborate the history and present condition of the legal doctrine as one source of law. About the history, the article mainly introduces the legal doctrine in roman emperors, in ancient china and its status in the textbook of jurisprudence and civil law from 1980s to now. About the present condition, the article mainly introduces the state of the legal doctrine in the legislation of some countries and its judicial application in some cases. In fact, the legal has been playing a port as one source of law.The third part is to demonstrate that the legal doctrine should have a status as the source of law.There is still much controversy on the status of the legal doctrine in the source of law. I think we should treat the legal doctrine as the informal source of law. It is because of the really necessity and the function and value of legal doctrine. From this aspect, the legal doctrine should play a role as the source of law.The fourth part, on the basis of case study about the judicial application of the legal doctrine as a source of law, we are mainly to solve the problem how to apply the legal doctrine and how to coordinate the relationship between the legal doctrine and other sources of law in the judicial process of our country. We have admitted the status of the legal doctrine as a source of law. When the judge can apply it? How to choose and apply? How to coordinate this legal doctrine with other sources of law? Our country's formal sources of law contains Constitution, law, legal interpretation, judicial interpretation, administrative rules, local laws and regulations, international treaty and so on. When there are the sources of law above can be applied, the legal doctrine is only applied to comprehend and explain the law. The informal source of law play a complementary role compared with formal source. The legal doctrine as the informal source of law plays a complementary role when there are not formal sources such as law, legal interpretation, judicial interpretation and informal sources such as case law, customs.Finally, we should clearly admit the status of the legal doctrine as the source of law, give it a place in source of law, ensure the validity of the legal doctrine as the source of law in legal system. So unnecessary disputes can be reduced. In the judicial practice, the judge should be cautious and follow the class of law when he applies the legal doctrine. At the same time, the judges need to combine his subjective initiative to choose the proper one in all kinds of legal doctrines.