Research On The Alienation Of Law From The Aspect Of Sociology Of Law

Law is not only the representation, but also an important content and motivation of modern society's civilization. As the appearing of scientism and rationalism, law turns not to help man——not understanding by people, or becoming an accomplice that against human. Besides, confusion and pain, some kinds of different law incidents aroused people's deep thought. Sociology of law has gradually attracted people's attention for its focus on positive and effective study method. In China, on the process of building a rich and harmonious society, what the role of imperfect law is? How to avoid and overcome law's probable alienation? To discuss it on the aspect of sociology of law will give us rich harvest. On the basis of summarizing and evaluating the theoretical resources about the alienation of Eastern and Western law, and clarifying relevant theories of alienation of law, this paper makes safeguarding the interests of the people and limiting public power a valuable guide, analyzed and abstracted some existing phenomenon of the alienation of law. It also analyzed all kinds of reasons of alienation of law on factors of human and law itself. And then, it discussed overcoming the alienation of law through law itself, man and Macro-social governance.This paper can be divided into six parts, and the main contents are as follows:Preface:First, it introduces the alienation of law through three representative law incidents; then, it elaborates the meaning of the title of this paper; finally, it explains the research methods used in this paper, namely, semantic analysis, value analysis and empirical research methods of social.Chapter 1:It discusses theoretical resources about the alienation of Eastern and Western law. Among the theoretical resources about the alienation of Western law, the representative thoughts are:Max Weber thought that probably the formal rationality of the law and bureaucracy may create cages which bound human; Roscoe Pound talked law as a tool which controls society; Jurgen Habermas pointed out that both formal law and welfare law may harm people's interest; Karl Marx thought that law is the tool of class ruling. In China, the theories of the alienation of law had analyzed relevant theory about the alienation of law in modern academic area, such as the representation and reasons of the alienation of law, the alienation of justice, the alienation of executive, the alienation of law methods, etc.Chapter 2:On the basis of philosophy analyzing alienation, the paper evaluated and analyzed theoretical resources about the alienation of Eastern and Western law, pointing out that on alienation the society of law in Eastern and Western both had its merits and shortcomings. Such as, Western scholars research law mostly on the aspect of nature, effect, limit, etc. and rarely research the alienation of law directly; Chinese scholars use alienation theory or borrow the word to research a part of law alienation and a link on the process of executive, among plenty of law contents, but hardly considering on the whole. On this basis, this paper pointed out whether in class society or no-class society, there would be the alienation of law. The alienation of law refers to law which was created by human to service themselves as social norms, has turned to be alien force of human, because of some reasons. Chapter 3:This part pointed out that the form of the alienation were persecuting people under law, legal harm, illegal violation, people's alien feeling to law and actively search substitute of law, etc. Reasons for law alienation are human factors and object factors. The former are valuation conflict of law for multi-pursuit, the contradiction of individuality and publicity, man betrays man with law under indirect democracy; the latter are the rigidity of the limitation of law, the unrealistic of law itself, "evidence centralism" of justice and proceduralism of legal operation, etc.Chapter 4:This part pointed out that we should correct our understanding to the alienation of law. Law is a tool to limit power and maintain rights, but its function is limited. Then, it proposed some strategies to avoid and overcome the alienation of law. First, law is people-oriented, and we should make suitable law. Law should start from the nature of human, tolerant people's shortcomings, praise people's merits; respect people's needs and interest; promote people's all-round development. Second, we should enforce construction of democracy and legislation, to prevent man itself alienation. We should perfect primary-level democracy, to make sure civilians take part in politic activity directly and make sure their self-government; praise and support associations which are civilian self-government, and gradually to achieve main body's social self-government; construct and strong indirect democracy. Finally, we should use macro and all-sided social means to prevent the alienation of law. To achieve this, we should give full play to folk law to prevent the probable alienation of state law; and also try to build a wide range of dispute resolution mechanisms.Conclusion:It summarized the total paper briefly.