The Self-development Of The Law Norm And The Effectiveness

The concept of law,or the question of what the law is,as well as the source of the law's effectiveness or the law's validity,are the classically foundational propositions in the study of jurisprudence.Since the ancient Greece,the theoretical explanations given have continued and haven't stopped------although the natural law does not directly face this problem,it has latent idea in the discussion of its natural law,however,it has concealed the pursuit of nature by "ought to be";and the analysis of empirical jurisprudence has begun to analyze the problem positively,although more detailed theoretical frameworks have been made within the law,but it has never been able to get rid of the dependence of the political factors of the country's legislation;the existing legal sociology research,although more plainly returns to the analysis of the legal and social relations,it has presented a theoretical bottleneck in varying degrees,or in general,or one-sided,or not pure.Under such circumstances,Luhmann's theory of sociology of law broke through the above limitations and provided a different path of explanation through comprehensive observation and analysis of the interaction between law and society.At the theoretical starting point,Luhmann constructs the "natural state" of social life as "complexity and contingency",which further evolves into "double contingency" in the interaction between people,these multiple possibilities lead to the "uncertainty" problem;and to resolve this "uncertainty" problem,we need to rely on the symbolic formulation of standardized expectations so that to achieve the desired stability instead of the certainty;this normative norms are redefined as the essence of norms,through the symbolic formulation,and through the questioning of the notionof "ought to".Then,starting from the theoretic starting point of symbolic formulation stability normative expectations,we first eliminate the opposed relationship between the norms and the facts,which is called Hume's puzzle.Then we reconstruct two basic propositions.Firstly,based on the symbolic formulation construction,the norms achieved the unconditional validity,and then the reconstruction of the self-generativeness of the source of normative validity has been realized.Secondly,the construction of the legal norms itself has been made from the perspective of function,and this function depends on the selective process of curing certain possibilities,whereby the law becomes the selectively evolutionary achievement with the function of eliminating the complexity and contingency and thus stabilizing the expectations,namely giving a reconstruction of the law itself.As to how the formation of this selective evolutionary achievement actually accomplished,we need to further analyse the dimensions of the specific causes that led to the uncertainty,together with the process of the social evolution of dividing society---stratified society---modern functional differentiation society,the certain possible of multiple strategies that can achieve the desired stability in their respective dimensions also show a process of selective evolution along with social evolution.That is,the expectation is essentially for what will happen in the future,from which the first dimension is the expectation's time dimension,presenting as a multivariate strategy of interpretation as anomalies and sanction,and sanction is chosen as the dominant,also with the evolvement of the society,the function of sanction evolved from violent claims to abstract guarantees.The second dimension is due to the uncertainty of the content comprehension between the different subjects of social interaction,that is the expectation's factual dimension,and it appeared from the only abstract level under the dual structure of law and morality to the evolution of the four abstractions of the personality,role,programs and value under the modern functional differentiation society,and then the selection of programs is the final condition.The third dimension is due to the difficulty of achieving universal acceptance at the social level,that is the expectation's social dimension,and the key of this dimension is the institutionalization.With the evolution of society,the evolution of social dimension begins from the self-generated institutionalization---the generalization of institutionalization through the preparation of third parties and their consensuses---the separation of judges' professional roles and the reflexive legislation as the alternative of institutionalized generalization.Finally,based on Luhmann's theory of the law and social evolution,the legal norm and the validity of self-generated theory made some theoretical breakthroughs and theoretical contributions in some sense.The theoretical breakthroughs are mainly manifested as------for the natural law,it is the realization of the disintegration of "ought to be " and ask further the key point of the norm behind the "ought to be" symbol;for the analysis of empirical jurisprudence,it broke down the dependence on the so-called "high order standard",and put the source of the legal norm and its validity directly retroactive to the social conditions itself,realizing its self-generation;in the case of present legal sociology,it broke through its different degree of theoretical limitations and realized more comprehensive,detailed and pure in the analysis of legal and social relations.The theoretical contributions are------First,from the selective and functional perspective to understand the law,it proposes the existence of any law in any society,so as to trace the beginning of legal norm to the beginning of social civilization,which is earlier than the previous legal philosophy theory of defining the beginning of the law for many years;Second,the reconstruction of the natural state at the starting point of the theory,the rethinking of the social order issue,the analysis of the relationship between law and society in the evolutionary process of the social panorama and so on,all manifest themselves as more "pure" sociology of law theory;Third,the reset of the functional orientation of the law has broken the functional orientation of the past as an important social tool to resolve the disputes but as a normative guide to stabilize expectations for participants in social interactions.