| Legal realism is an academic ideology and an important modern law school that develops when legal formalism encounters a crisis of trust and cannot effectively respond to social reality.Legal realists believe that legal formalism clings to conceptual and formal logical reasoning,and cannot effectively respond to changes in social reality in the face of uncertain legal rules and case facts.At the same time,it cannot integrate social development goals and social values into the judicial process.Among them,this results in a high degree of divergence between the judicial outcome and the social reality,thus affecting the implementation of the law and causing the loss of legal authority.The basic development background of legal realism has some degree of similarity with the social development after China's reform and opening up.In the course of reform and opening up,China has continuously attached importance to the construction of the legal system and established legal rules for many blank areas.However,in the judicial practice in particular,on the one hand,many legal rules are highly out of line with China's socioeconomic situation and cannot play an important normative role.On the other hand,in order to ensure the effective implementation of legal rules in the judicial process,the Chinese judicial authorities have strengthened their work in accordance with the law.A long-term nornativeism tradition has been formed and the corresponding judicial cases have been dealt with strictly in accordance with the law.As a result,some judicial decisions have been widely questioned,people are unacceptable for this judicial outcome that is severely divorced from our country's social and economic life,and give a negative evaluation,which affects the authority of our judicial actions.Faced with many difficulties existing in the process of judicial transition in China,this article starts from the perspective of legal realism to examine the problems existing in the process of contemporary judicial transition in China and the causes of related problems.On this basis,from the basic point of view of legal realism,put forward the basic suggestions for the contemporary judicial transition in China.This paper studies the contemporary Chinese judicial transition from the perspective of legal realism for four different levels.First of all,this article defines the basic connotation and characteristics of legal realism,and defines the basic premise for the discussion of legal realism.Then from a basic point of view of legal realism,research approaches and research methods,the law realism is relatively comprehensively sorted out.Since the main influence of legal realism on judicial behavior stems from the development of legal realism in the United States,this article focuses on the entire process of the emergence,development,prosperity,and decline of legal realism in the United States judicial process,and analyzes it in depth.Legal realism influences the specific social background and judicial status of judicial activities in the United States so as to ensure the profoundness and comprehensiveness of the analysis of the influence of legal realism on judicial activitiesSecond,this article analyzes the important influence of legal realism on modern justice.Rules skepticism and facts skepticism form the basis of the relevant argumentation of legal realism,and it is also an important influence on modern judicial activities.Legal realists believe that legal rules and legal facts are all uncertain.Therefore,judicial activities should be emphasized on judicial activities,and relevant effective legal rules should be summarized.In addition,the legal realism attaches great importance to the value of the social regulation tools of the law,emphasizing that public policies should be integrated into the specific judicial process,focusing on the constant changes of real life,and reclassifying the law according to the requirements of functionalism,rather than sticking to it traditional classification logic system.Then the legal rules are refined according to socio-economic policies and specific economic and social environments.Third,based on the legal realism,this article makes a deep reflection on many problems that have emerged during the judicial transition in China.Based on the viewpoints of rules skepticism and facts skepticism,examining the judicial practice in our country can find that China's judicial activities place too much emphasis on the normative nature,but they do not pay enough attention to the social influence of judicial activities,and they also pay insufficient attention to the effectiveness of judicial outcomes.From the perspective of functionalism,China's judicial activities do not emphasize the value of the law in the judicial activities.They do not classify the law functionally.At the same time,they do not attach importance to the use of interest measurement methods in judicial activities.In addition,the judicial practice in China does not attach importance to the specificity of the law.It has long been adhering to the notion that "should not be meticulous enough," resulting in a lack of refinement of the law.Finally,this paper proposes some suggestions for improvement in the field of legal realism in order to promote the judicial transition in China in view of the many problems existing in China's judicial practice.From a conceptual perspective,we should oppose absolute formalism,recognize the significance of dialectical reasoning,and at the same time pay attention to the application of specific research methods of social jurisprudence in the judicial field.Judging from the referee's thinking level,we should pay attention to and examine the influence of social and economic factors outside the rules in the process of specific judicial decisions,and form empirical referee thinking.Judging from the specific methods of judging,the legal interpretation,legal reasoning,and legal argumentation methods should be reformed to form a judicial judgment method with legal realism characteristics. |
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