Research On Frank’s Legal Thought

The legal realism movement has set off a wave of criticism on the traditional American jurisprudence,and the legal thinking has begun to change from "law in books" to "law in reality".Therefore,people begin to pay attention to how to use law to solve practical problems in society.As one of the representative figures of realistic jurisprudence,Jerome Frank used the research methods of pragmatic philosophy and psychology to break down the "basic legal myth" of legal certainty,and formed many legal theories including legal uncertainty,judgment is law,factual skepticism,etc.He also put forward a series of far-reaching judicial reform and legal education reform measures.However,most of the domestic studies involving Frank’s legal thoughts are rough descriptions of his legal thoughts under the macro theme of narrating the legal realism movement,or take Frank’s theory as a reference for horizontal comparison research through comparative analysis when studying realistic jurists such as Llewellyn.As a matter of fact,there are few research results on Frank’s legal thought in the academic circle,and most of the existing literature is to discuss the theory of legal uncertainty,which is just the most prominent contribution of Frank.Therefore,the lack of a comprehensive and systematic study of Frank’s legal thought as a whole.This paper mainly uses the research methods of literature research,comparative analysis and case analysis,systematically combs and summarizes the main contents of Frank’s legal thought.Then,it finds that the legal lag is the cause of the dispute between legal certainty and legal uncertainty,and that the facts restored in court carry the imprint of judges and other subjective personalities.In additionally,judicial reform and legal education can not exclude the influence of "human" factors.Therefore,under the concept of absorbing the outside without forgetting the original,combined with the current national conditions of China,this article purifies Frank’s legal thoughts and extracts the views and practices that can be used for reference and transplantation.First,legal interpretation can be found as a tool to connect legal certainty and uncertainty,to make up the gap between existing laws and social reality,to complete the balance and coordination of legal certainty and uncertainty,so as to make the coexistence of logical and self-consistent.Secondly,it is necessary to absorb Frank’s interdisciplinary research methods and thinking,and carry out the legal theory research with cross-department method or even interdisciplinary research methods,so as to broaden the visual threshold and dimension of legal research constantly.Third,we should promote the problem-oriented reform in the judicial field and legal education field,and realize the correction of subjective facts to objective truth by improving the system of evidence collection and evidence supervision,so as to make up for the defects of the court’s fact determination in judicial practice.In addition to the introduction and conclusion,there are three parts in this paper.The first part mainly expounds the origin of Frank’s legal thought.The second part mainly summarizes the main content of Frank’s legal thought,analyzes Frank’s uncertainty theory,factual skepticism,and the measures of judicial reform and legal education reform.The third part is based on the need of the contemporary situation of our country’s legal construction and the analysis and explanation of Frank’s legal thought in the previous article,putting forward the experience and practice that our country’s legal construction can draw from Frank’s legal thought.