A Study On The Rules Uncertainty In View Of American Realism Law

Legal realism is a rising tide of law in the United States which is established by Llewellyn and Frank Holmes in twentieth Century 20s-30 s and based on foundation of legal pragmatism and Freud’s psychology creation.It takes the objective reality of law as its research object and emphasizes the judge’s behavior and concerns the effect of justice.“The rules of uncertainty" theory which is the core theory of three great theory(including the realistic law rules of uncertainty theory,legal practice theory and the judge makes law theory)mainly goes through the surface directly and exactly "paper rule"(paper rule)to explore the reality of "rules"(real rule),depend on which,Llewellyn emphasizes it repeatedly that people should examine and doubt whether the judicial behavior is actually supported by the paper on the content of the rules;at the same time,Frank considers factor suspects instead of doubting rules,he insist getting rid of the certainty of law which is a myth of covering judicial reality.Of course,like some anti realists at the same period of time,researchers either consider Llewellyn’s rule of uncertainty on one-sided or externalization,and defines the uncertainty as doubting all written laws,which expands the definition of Llewellyn’s rule of uncertainty.In China,due to lacking of legal research on realism and affected by the anti realism law,people don’t have a systermly and overall understanding of legal realism except a few works,and even some extremely distortions and misunderstandings emerge in endless.This paper is going to analyze the environmental factors and its own factors of which creates the rules of uncertainty and reflecting of rules of uncertainty in the relevant both theoretical and practicing field through the elaboration of legal realism’s origin,viewpoint and interpretations,correct the misunderstanding and discuss the value of rule uncertainty,put forward "the conflict and convergence between the rules uncertainty" and "the rule of law",and so reconstructing and setting the reasonable doubt of justice.