Constructive Skepticism

Frank's fact-skepticism always carry out a subject such as skepticism.In order to criticize the conservatism and rigidity of legal formalism,the way in which Frank relied on skepticism did not ultimately go to the extremes of “rule nihilism” and “factual nihilism”.Instead,the skepticism in Frank's fact-skepticism was a constructive skepticism.This skepticism is a gentle,constructive skepticism that is a rational suspicion of human's cognitive power and the credibility of knowledge,not an extreme,an absolute,denial of all doubt.This is reflected in the fact that its skepticism is not only a matter of criticism and destruction of legal formalism influenced by civil law,but also attempts to return justice to the common law tradition characterized by case priority.In the skepticism of history,Frank explores the influence of the subjective and emotional characteristics of judges,juries,lawyers,parties,witnesses on the judicial trial in order to explore the influence of human weaknesses on the operation of the system as the main line.Is the judge of the personality characteristics of the fact that the impact of identification.The suspicion of factualization can be described as the most important basis point for constructive skepticism,on the one hand,it is more thorough than the rule that its deconstruction of the importance of abstract rules is more thorough,on the other hand,the uncertainty of the facts and the facts of the case discrimination also determines that the specific justice in the case takes precedence over the abstract justice represented by the rule.The first part mainly introduces the determination of Frank's theory of skepticism.Respectively,from the ideological succession,theoretical support and the necessity of the times three aspects.The idea of inheritance focuses on the influence of Holmes and Learned Hand on the formation and determination of Frank's theory of skepticism.Frank's skepticism about judicial reality began with Holmes,and under the influence of Learned Hand,the skepticism was further penetrated from the field of rules into the realm.Theoretical support focuses on the origin of pragmatism and psychology,which exists as a tool and basis for the deduction of skepticism theory.Pragmatism itself contains the spirit of skepticism and provides a critical way for factual skepticism.The origin of psychology includes both Freud's psychoanalytic theory and Piaget's theory of children's psychology.The necessity of the times mainly emphasizes that the legal formalism judicial style is challenged and questioned in the case of great changes in politics,economy and society.Frank's fact-skepticism is to criticize legal formalism in terms of rule doubts and factual suspicion,both of which are one of the wings.The second part mainly introduces the development of skepticism in fact-skepticism.The content includes the two levels of skepticism and suspicion of factual cognition,and it is suspected that the rule cognition level discusses the value of rule uncertainty from three aspects: the uncertainty of rules,the law of judges and the three aspects of the court of first instance.The significance of law and the importance of factual problems;suspicion of the fact that the level of fact in the construction theory,the theory of the struggle and the first three aspects of the conclusion to discuss the fact that the judicial decision and judicial judgments in the process of judging the uncertainty of the trial,and the use of psychological to study the impact of subjective factors on factual recognition.Whether it is skeptical rules of cognitive level or doubt the fact that the level of recognition,we can see the subjective factors of the impact of the trial,which is the fact that skeptics can be described in the external main line,inherently contains the rules of certainty and criticism and deconstruction of legal formalism in characterization.The third part mainly discusses the “destruction” and “construction” in the skepticism of facts,to prove that skepticism is a constructive skepticism.The “breaking” of fact skepticism mainly deconstructs the importance of rules through the rule-suspicion and fact-doubt,criticizes the legal formalism and forms a kind of resistance to the tradition of rationality of the continental law.The factual skepticism of “construction” aims to restore the tradition of priority of common law cases by shifting the focus of research from the domain of rules to the field of facts.It emphasizes the priority of case justice over rules and the fairness of facts in specific cases.The rules are flexible.