Research On Frank Skeptical Theory

Jerome Frank,a famous American jurist and representative personage of the school of realistic jurisprudence,is famous for criticizing the tradition of legal formalism and dispelling the myth of legal certainty.A former lawyer,federal administrative personnel,Yale law school professor,finally to become the judge of the united states court of appeals for the second circuit,rich life experience and professional process makes him have the chance to further observation and research on the legal system in the United States,is also with his rich experience in the practice of law,Frank written quite a lot in terms of legal theory.Among them,the most influential and representative is the theory of skepticism,namely through the criticism of the two key points of legal formalism--legal rules as the major premise and case facts as the minor premise,the skeptical theory with uncertainty as the core and rule-skepticism and fact-skepticism as the main body is formed.At the beginning of his theory,he put forward a rule-skepticism with legal uncertainty as the core in Law and the Modern Mind,arguing that the law has uncertainty and the judge’s judgment is the real and realistic law.After that,in the criticism and questioning of the external theory,and under the internal requirement of the development of its own theory,the skepticism was extended to the field of fact,and the accuracy of the fact determination of the trial court was questioned.It is believed that the legal fact is the result of the judge’s guessing based on the opinions of witnesses,lawyers and the jury,is the subjective fact considered by the judge,not the objective fact that actually happened.By revealing the subjectivity in the process from the application of rules to the determination of the facts of the case,Frank strives to awaken constructive skepticism and pursue visible substantive justice.Due to frank’s unique theory and perspective,as well as his seemingly overheated discussion and words,it soon attracted the wide attention of scholars,and aroused a fierce debate on legal uncertainty in the jurisprudence circle.Therefore,based on the above contents and background,and relying on the textual analysis of Law and the Modern Mind and Courts on Trial--myth and reality in American justice,this paper focuses on the theoretical and empirical research on the relevant issues of frank’s skeptical assertion.On the basis of combing the theories of legal realism,rule-skepticism and fact-skepticism,this paper explores and constructs the theoretical analysis framework of the process from rule skepticism to fact skepticism,and integrates the historical background and theoretical origin into the evaluation index system of frank’s skepticism theory,using historical analysis,comprehensive analysis and philosophical criticism to carries out a multidimensional analysis of frank’s skepticism theory,trying to digs out the part of skepticism theory in frank’s thought in a relatively complete way,further analyzes and sorts it out,and makes an overall and objective evaluation on it,on the basis of dialectically looking at this theory,explores the rational elements of this theory,and provides a reference for the current legal research and judicial practice in China.