Frank’s Thoughts On Legal Uncertainty

Law,as an indispensable tool for governing society,has achieved the establishment of a good social order to a certain extent.The stability of the law allows people to make a full prediction of the social behavior that will be carried out,and guarantees the stable state between people and society.The world will change,the law also change.The certainty and uncertainty of law are always inseparable.In the United States,before the emergence of legal realism,the myth of legal certainty advocated by legal formalism was not completely broken.It can be said that legal realism was the first to question the existence of legal certainty and impacted traditional American legal thought.As a result,the claims of legal realism spread on a large scale,and they quickly entered the public’s field of vision.Jerome Frank is one of the main representatives of American legal realism.Combining the pragmatic philosophy of that time with the research results of Freud and Piaget ’s psychology,he broke the long-standing “basic legal myth” and proposed that the law should not.The theory of certainty holds that the legal uncertainty is due to the uncertainty of the facts of the case at the first trial;it takes rule skepticism and fact skepticism as the main content,emphasizing the unusual role played by the "human" factor in the judicial process.This article will analyze Frank’s idea of legal uncertainty,which is mainly divided into four parts:The first part is to introduce the background and theoretical support of Frank’s idea of legal uncertainty.First,understand the ancient topic of legal certainty and legal uncertainty,and criticize basic legal myths,leading to American legal realism.Then analyze the American social background and Frank’s personal experience,and finally analyze the theoretical support on which Frank’s idea of legal uncertainty relies.The second part mainly introduces the basic content of Frank’s idea of legal uncertainty.It starts with criticizing traditional legal concepts and then constructs the factual skepticism that belongs to it.The basic myth of questioning legal formalism and breaking the certainty of law began,to the myth of the court of appeal,to the process of Frank’s determination of the facts of the court of first instance.Although the facts of the case are important,the existence of rules cannot be ignored.Frank argues that he avoids the definition of the word,but merely describes what it really is.Focusing on the analysis of Frank’s process of determining the facts in the first instance,combining the research results of psychology to analyze the factors that affect the factual investigation of the case(mainly "human" factors),and the analysis of the theory of precedence in the legal reasoning process.Frank put forward his theory to pursue justice in judicial cases and fair judgments in specific cases.The third part mainly analyzes how Frank’s naive mind based on legal uncertainty is analyzed and how Frank’s judicial practice reflects his theoretical claims.First,criticize and reform the existing Langdell’s model of legal education,focusing on practice and learning from a psychological perspective;and then analyze how the jury system and the trial court reform.Then is to analyze how Frank’s judicial suspicion of facts and the personality of the judge are implemented.To know has Frank’s theory been fully reflected in his judgment?The fourth part is mainly to evaluate the uncertainty of Frank’s law.Frank’s main contribution is to deconstruct the importance of abstract rules.He pays attention to the fact-finding link in the first trial and the subjectivity of the trial judge,jury and witness testimony in judicial activities.Factors,but it also has its shortcomings,that is,the relationship between legal certainty and uncertainty is split,and whether the law is established or not is equivalent to the court’s decision.Frank’s theory of legal realism has far-reaching effects.Although it has certain limitations,it still has its unique and unusual heuristic effect,which has a certain impact on critical jurisprudence and new legal realism.