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- April 20, 2011, 03:57:11 PMAnalysis and Construction of private rights - the basis of Law and Civil Law
People Law Section in the types of knowledge and analysis of the status of law First, the Chinese Civil learn the meaning of the Civil Code (civillaw ), the level of a narrow understanding of this concept especially to the Roman - Germanic Law Private Law Origins of the European continent, so the civil law, also known as civil law, in this sense, civil law is a relatively closed system, if it deviates from Rome - the primitive Germanic law, it will not become a civil law. However, the level of understanding of the broad, civil law is private law, or that the Basic Law of the Civil Code is private law, in this sense, civil law should be a relatively open system, but not limited to a particular law. I think that when we say that China's civil hours, where after the civil law should refer to the significance of the surface layer, although the history of the main following the Chinese Civil Law Civil Law. For this position is very important, as it relates to our knowledge of the Chinese civil law understanding of the types, but also related to our current situation of Chinese Civil Law of assessment and reflection, but also related to the future Chinese Civil Law knowledge construction. Two types of knowledge: folk knowledge and analysis posed by the concept, the concept of the type determines the type of knowledge. American law the concept of anthropologists Bo Henan will be divided into two categories, one is the so-called The concept of folklore is the concept of inherent system of a nation is a nation in its long development process of the evolving concept, the concept of not belonging to any u> Sociology [/u] the number of home and social anthropologists created the scientific method with the concept of system. extent of the concept of a folk system of 2 is mainly the product of Roman folk nation, of course, Roman law continued to today, during which comments after law, the transformation of the concept and process of law, in the Roman law concept of the folk system has been mixed with a large number of analytical concepts, but these analytical concept does not completely change the basic structure of the original Roman law, they are just attached to the Roman law concept of the original folk above, to assist Roman the old legal structure to deal with the real world. Three, folk and Analysis of Civil Law Civil Law According to the above discussion, we can the knowledge of civil law in the initial fall into two categories, one is evolved with a strong history folk knowledge of color, the other is the rational construction of a universal knowledge. Practice civil law in the Roman and Germanic law in the basic content of the main civil law developed into the knowledge of history, and modern analysis of law is largely rational construction of knowledge. The former can be called the folk civil law, which when applied to the study of civil law, civil law can be called the analysis, the future development of civil law will certainly tension between these two kinds of knowledge being started. Analysis of Law did not think of a Thousand Years of civil structures is the structure of natural and civil law, only that the inherent mechanism of the Civil Code is a uniform constant, while the internal mechanism of the interpretation of civil law from outside the civil law it can be turned into endless form, and Rome - the Germanic system of civil law structure is a kind of endless possibilities only, as the internal structure of all languages is constant unity, but the specific shape of the national language is colorful. Austin said: other people do not understand the law a person can not truly understand their own national laws. We can also say: an analysis of civil law do not understand people who can not really understand their own nation's civil law. Perhaps history has been verified, Rome - Germanic civil law system, the structure may be the most suitable for people in social life and intelligence of ordinary people best suited to a structure, but this does not mean it is perfect, It is the most scientific. Of course, we must also bear in mind, the law is a very strange guy, for the law, the most of science is not necessarily the best, which is of civil law sometimes Fact, in many cases, a living landmark Civil Law mechanical knowledge to folk of civil law or civil law is not appropriate, such as the Roman civil law as a kind of folk, which already contains Analysis of a large number of very sophisticated concept. Blackstone in preparing the 3 This is the Roman law was widely circulated to the reason, otherwise, a pure folk thing is impossible to conquer the world. Fourth, the function of civil law of Civil Law Civil Law for the folk can afford a reflection, understanding and critical functions to help us more in-depth understanding of a folk Civil Law , as the West's natural science can help us understand some of the ancient Chinese as production techniques. Present, the Chinese mainland and Taiwan civil law doctrine of successor mainly through Germany. However, due to our lack of a purely legal science (analysis of civil law) as Xuezhi the support, therefore, on the theory of civil law in Germany and Taiwan reflect a lack of internal capacity. Therefore, China now seems to be a lot of civil law confusion, we tend to dwell on some abstract legal problems among countries, even though other countries may not be legal problems is our real problem, but we have to follow the civil law concept of their limited the direction of research continues, and a breakthrough can not go beyond civil law in the history of the formation of an established concept. Such as the distinction between property rights and claims have been dominated by some of our new property rights, and the breeding of many fuzzy concepts 4. Now, some academics have already pointed out: create international rules and legal experience to form a fully inclusive and eclectic self-confidence, there is no need longer follow a foreign law by following the road back. We should learn from foreign law, but this reference should be open and flexible, rather than recognize only one system, a code, a model. in fact play a State of Law 6 five civil law of the other types of knowledge In addition, the need to note is that the knowledge about the types of civil law only in the binary sub-laws also not comprehensive enough, but also civil law should include several other types of knowledge: 7 First, civil law or civil law doctrine of interpretation, legal dogmatics (legaldogmatics) is a value system will be considered as an absolute authority, and made the basis of their In fact, the administration of justice in their daily activities, the work of judges and lawyers are engaged in teaching or interpretation of civil law civil law work. 8 two non-strict legal sense of the Civil Law Civil phenomenon that is social science subjects such as civil Economics , Civil sociology, they have not the nature of the disciplinary norms but the fact that the nature of the subject, they are just a branch of economics or sociology, rather than strict legal sense of the branches, but their methods have been widely used in civil law scholars, civil research, especially commercial research. Perhaps, someone will ask the question, we usually used as a , both containing the folklore of civil law, because the Roman civil law in China today is still, according to an important position, it also contains the analysis of civil law, because it also many legal concepts and legal structure for rigorous logical analysis, it also contains the doctrine of civil law learn, because it has to elaborate the existing civil law system in China, it even contains a civil economics and sociology of civil law, as it is to advocate and demonstrate why a civil law system is reasonable or absurd. Six, drawing maps of the significance of the knowledge of civil law the past, few scholars of civil law made a classification of the type of knowledge, but today we have the knowledge to paint a map of civil law because Yiping this map, we may understand that we are engaged in the civil law of a specific nature of the study is only possible to understand the nature of the civil law of different methodological boundaries, it may be to understand China's Civil Code learn what is in a way, the only possible understanding of Chinese Civil Law has done those jobs, which did a good job, what kind of work done well and what has not yet begun to do, what has not thought to be do. Objectively speaking, the folk of civil law, the Chinese legal scholars have done a lot of work, because our civil law system is to the Roman - Germanic civil law as the basic structure set up, but we it seems as all the civil law, and thus it may seem obvious, but very few people reflect on what law should also include other. Of course, the civil law to explain science in a worldwide trend of philosophy has been under the influence of great importance in Chinese civil scientists, but research is not enough depth. The analysis methods such as civil law concept analysis and logic analysis, we are not perceived to use, but never truly be regarded as an independent knowledge of civil law, if the independent status of knowledge are not really understanding and certainly, it is impossible to obtain systematic study, therefore, analysis of civil law in China is basically a blank, analysis of law for the Study of Chinese Civil Law is very weak. Law Section of the origins and spirit of the an analysis of the concept and scope of law defined as a legal ontology analysis of law as a legal methodology and analysis Law so-called As a legal analysis of legal claims ontological distinction between implied in law Xumiao among the formed a set of logical analysis and linguistic analysis-based systems and sophisticated legal analysis. As a Legal Ontology Analysis of Law and Law as a legal analysis of the general methodology is the integration of one. I believe that, as a legal analysis of the ontological claims of law and disregard the fact that the value of legal factors, loss of too narrow, but the law as a legal analysis of the methodology is a valuable asset. Anglo-American analytical jurisprudence and analytical jurisprudence in other countries In addition, the analysis of law in its extension of the concept also has two levels of meaning, in the narrow sense, the analysis of law refers only to Britain and the U.S. of the Bentham, Austin for the origins of positivist law schools, in general, the analysis of law refers to legal positivism in the history of all to the spirit and methods as the basic law schools, so here we will comment of Law , the concept of law schools and other areas all being included in the analysis of law. Analysis of law is the law when the human civilization to a more mature state occurs when a law school, a more mature legal generally bear with three factors, namely, the value of facts and logic, the law covered in Components of the logical factors which formed the basis of law. Roman law is the law of human civilization in the history of an earlier maturity of the development of legal phenomena, therefore, the 11th century to the 15th century to the Roman law as the main subject of the French 19th-century German notes the concept of law and legal practice already contains quite a full analysis of the law the bud. After the development of the capitalist economy as the law requires systematic and increasingly urgent accuracy, legal form factor that highlights the growing importance of logic elements, a more complete legal form - the analysis of modern British and American Law The trend appears to be inevitable. Below, we analyze the basic legal concepts of law analysis of the clue, the simple comb the origins of law. Second, the analysis of the Origin of Law: A Conceptual Analysis of the law as a clue common law and civil law are two disparate legal traditions, the former to empiricism as a philosophical basis, after are the basis of rationalism as a philosophy, the former as Ezra Pound said: justice in cases as required by the case to the next case, cautiously, and not to resort to set everything back the general. rationality above a level of formality to it, the legal system of the internal factors are decisive scale; has reached its logical that a degree of specific norms and principles of law are consciously creating a special mode of thinking in law, the the kind of systematic thinking logic of high wealth, and thus only from the pre-set norms or principles of legal interpretation of a particular logic program in order to obtain judgments on specific issues. methods of legal formalism. Philosophy of reason under the influence of the seed law first appeared in the civil law, French law and German comments is to analyze the concept of Law of Law on the European continent the two main origins. When immersed in civil law jurists among the speculative reason, the common law jurists have experience of being intoxicated on the absolute trust of being. Perhaps the common law in the bud, and it appears first as What should be the one the Chinese old saying: Origins of Law and one of : Notes Legal Notes Legal 11th century in Western Europe appeared to a 15th century to confront the legal and theological schools. As Roman law with the collapse of the Roman Empire disappeared in the reign of medieval theology, Roman law was brilliant moment has been known, until 1080, an important text of Roman law, The face of this discovery, people's feeling that as the year when the San Yi-long 10 Thus, transcription and research, A distinguished teacher in the ancient Arab Cornelius under the influence of Bologna Law School, becoming the center of Roman law, and became the birthplace of Law Notes. Note the main work and contribution to the law, as Berman in legal system can be almost totally from the previous social conventions and the general system of mixing politics and religion as one born out of various out of the old legal order. Greek philosophy. Ancient Greece and Rome is two very talented people, Greek talent show, in theory, the Roman genius manifested in practice, it can be said of philosophy, especially Aristotle's logic is Greek the performance of talent, but Rome is the Roman law of gifted performance. Law in the comments there, the gift of the two nations are combined together, and this combination of law fully reflects the methods of the comment. Comment early in its development of Law (13 centuries ago) the use of the method is a method of scholasticism 12, the Greek scholar Aristotle's logic applied to the interpretation of the classic literature of Roman law and Finishing. This approach is: to presuppose the absolute authority of the Roman classical literature, they are considered to contain a comprehensive and complete system, while it also assumes that there may be omissions in the text and contradictions, and then, using logic method to fill the omissions, to eliminate the contradiction. 13 century to the 15th century under the leaves, comments on the Roman Law of major changes have taken place, no longer rigidly adhere to the classic texts of Roman law comments to Cappuccino and Baerduolu comments represented jurists on the basis of comments in the early to begin refining the legal concept (such as the concept of property rights and claims), summarized the basic rules of abstract general principles, a legal analysis of the structure, not only rough, messy system of Roman law, but also the law to become an independent science. So, later also known as Law Review of Law Notes. Origins of the Second Analysis of Law: Legal Concepts and Notes Roman influence gradually into law in Germany, in 1495 the Holy Roman Empire Roman Empire began to use the courts. In the process, following the Roman Law, German born with its Originated the concept of law after the mid-19th century evolved from the history of law, the analysis of legal concepts and construction of the structure of the legal system. Porting the concept of hair at the Pan Deke Law jurists Puxi Da Dayton, master of the temperature Te Xiate. Concept of law is very superstitious rational ability of jurists that the rational construction of the code enough to cover and address all social problems. They have a persistent pursuit of the law is designed as an exquisite form, when people examine the facts of a specific social relations that are included in the law, just follow the strict logic, through the draw accurate conclusions. Japanese Civil Law scholars Kato, Ichiro had been to a definition of the concept: leads to mechanical, in the form of conclusions. has never been the concept of law is. it just as vending machines, input from the above facts, in which the so-called pre-determined applicable law, and then automatically come out from the following conclusion. era in which the family is the Weber law developed the concept of time, Weber said the legal formalism (formalism) is against the law in terms of the concept. Although the concept of law on the ideal of legal reasoning can not help but naive, but refining the concept of law by all the abstract and sophisticated legal concepts, such as legal acts, facts, etc., are still important in modern theoretical basis of civil law, still hard to beat. It should be said, the concept of law attitude of excellence for the legal concept of blame, because, as legal scholars and legislators, as much as possible to summarize the complicated social reality to the concept of a robust legal system, and that this is their duty, rule of law itself nature of the request, but not for abstract concepts that refining and rigorous logical reasoning, generous to his left to the judge, is quite a lazy approach, is also incompatible with the nature of the rule of law. Therefore, the Chinese concept of law jurists for excessive criticism is reckless and superficial. In fact, the concept of law meritorious legal history in the West, the concept of law presided over the drafting of the master temperature Dexia Te u> Computer [/u] As for the concept of law is most violent and vitriolic attack is Pan Deke Dayton School of Law, 14 In fact, the concept of law is essentially a method of law, this method should not be criticized themselves, and should be subject to criticism but that extreme approach, however, many people criticized the concept of law, the puts have abandoned this approach, make things a mess. Because the law have become the law, and even the rule of law have become the rule of law is that it is the most essential way to the concept of law, it is formed by the construction of the concept of rules. If taking this one, law not become law, the rule of law will become the rule of man. In conclusion, Yellin criticism of the concept of law, the passage said Radbruch is very calm and fair: freedom of the individual followers of law school as the object of violent attacks, but this attack is actually not against the law of the structure (the concept of law), but only for the construction of a false way. criticized the concept of law given to those who like to get too far but people are always criticized. Concept of law in the late 19th century, after the lawyers Merkel, Post, Meyer, represented by the concept of legal positivism and gradually transformed into German law school, also known as the new concept of law, it is also the analysis of law a tributary of the family, but with the Anglo-American countries, compared to pure analysis of law, the idea of deep flow from Bentham and Austin is not the tradition, but rooted in German tradition of local law, the history of law and concepts of law. Analysis of Law from the different legal systems and country breeding and developed independently, this also shows that analysis of law is the rule of law and legal development of the internal trends and requirements. Here, a description of the above analysis has pointed out that the law narrowly is the Anglo-American countries, Analytical Jurisprudence, and the concept of law is a native of Germany, objects, however, both in methods is the same, so, many scholars compare the two, such as the Japanese Civil scholars Ichiro Kato description: (analyticaljurisprudence) way of thinking can be said that the early 19th century to the 20th century way of thinking about the concept of law reigns. > Europe in the 18th century onset of doctrine, the birth of analytical positivism as an important philosophical background. Is the history of modern analytical jurisprudence from the then British jurist Jeremy Bentham (Bentham) of the book Bentham believes that the source was born in British common law and customary law difficulty that he increasingly felt the systematic analysis of the logical structure of the legal system is a very necessary foundation work, so, Bentham in the Analysis of Law for the mountains. Another Bentham's writings theoretical origin. Bentham Analysis of Law in Austin students thinking of even more far-reaching, he is very focused on the empirical analysis of basic legal concepts, such as the objects Austen's classic, Of the United States by the law of the United Kingdom, since the independence war, the trend in U.S. law as the essential characteristic of a logical interpretation of the formalism (Formalism), particularly in the late 18th century, legal formalism performance is even more apparent. Dean of Harvard Law School, 1870 Blue Dell (Langdell) created by case analysis (thecasemethodoflegalinstruction) was legal formalism (legal reasoning) to provide a set of analytical methods. Blue Dell that: the law by the limited number of basic theory and principles of composition, the principle of legal development of basic theories and concepts from the development of the principles of logic. So, he put great emphasis on law in the form of consistency, objectivity and predictability. In his American jurist Friedman in his famous 16 Blue Del ideas and methods of the law was severely criticized by Holmes, Holmes in his masterpiece Under the impact of the Holmes, the mainstream of American law tend to gradually from the Analysis of Law Legal Realism, however, analysis of law is still in the further development of the concept of the Blue Dell doctrine (conceptualism) of the case analysis is still dominated American Law School of Law education. American jurist Gray (Gray) (1839-1915) inherited the tradition of analytical jurisprudence, in his famous differences and was particularly confusing 18 emerged early in this century's great masters, another analysis of law is the American Austrian jurist Hans Kelsen (1881-1973), he founded the Pure Theory of Law, the norms of law, claims the law as Because only the legal theory not only with justice and with the sociology of philosophy separate separate possible establishment of a genuine legal. Thus, Kelsen's Pure Theory of Law is the law about the relationship between structure and doctrine, that is purely analytical jurisprudence. Here, we should also specifically mentioned one of jurists, is the U.S. Hohfeld. Hohfeld 1913 and 1917 in the He said: ideas, we have to the rights, obligations and other legal relations of the concept of strict inspection, and classification differences. mother Hohfeld's analysis of legal thought on the U.S. legislation and practice has had a major impact, compiled by the American Law Institute, Hohfeld also remind us of the idea: some new legal phenomena such as equity and the trust property, not to rush to the qualitative, but should be detailed analysis of its internal elements, which is an anti-essentialism (anti-essentialistideas) of the Legal Method . In this paper, the second chapter will go into some detail Hohfeld's theory. Origins of Law and four: the Scandinavian legal realism Scandinavian legal realism analysis should not be overlooked is a positivist law schools, it main representative is 海格斯多姆 (Hagerstrom) and their students Olivercrona, Lunstedt, Ross and so on. This school of natural law is ignored, Friedman attributed in part to the lack of a strong Scandinavian tradition of the results of the Catholic Church. Of course, the Scandinavian legal realism, unique response and review. One, Ross published in 1957, . Third, analysis of the basic spirit of the law and its significance of the five basic spirit of the law In short, the analysis of law or of legal positivism, within a large family, tribes everywhere, thread interleaving, and classification of any sort can only be rough. However, very clear that they all have a common spirit and method, which is why they are labeled only in the name of law. So, this common spirit and method? New Analysis of Law Master summary Hart called the authority, he thought of Analytical Jurisprudence in the following five basic characteristics: First, that legal order is a human; second is that the law and morality or law and if the law is no necessary link between; third is that the legal concept of analysis is a significant work, which is different from the origin and operation of the legal history of science and sociological research, but also different from the natural law approach; fourth is that the legal system is a Some legal provisions, the logical way to interpret it; five is that moral judgments can not be the same as the statement of the facts, the evidence on the basis of reasonable inference to be confirmed. 21 various points in the above, the third and fourth highlighted by this article, and the introduction of civil law in this study, the other is not related to this article. Analysis of the philosophical basis of law: analysis of philosophy and semiotics academic law is impetuous, a mouthful of greasy, Should be recognized that, at present, China's legal philosophy and other disciplines, especially the gap is deep. This is an unusual situation. In fact, in Western legal history, law, any time on the progress with the progress of philosophy is inseparable to, such as Kohler and Hegelian origin, Kelsen and the new Hong German doctrine of the origin, Hart origins of analytic philosophy can be said that a new philosophical school there, it is often also in creating a corresponding law in law schools and thought leaders. 22 Analysis of Law's philosophy is based on analytic philosophy, semiotics and related (including semantics) and so on. Language of analytic philosophy is first and foremost, the main method of logical analysis to establish the so-called philosophy of science, which includes the logical atomism, common sense realism, logical empiricism, ordinary language school, The School of pragmatism, critical rationalism and historical sociological, etc., which formed in the beginning of this century the United Kingdom, is the impact of English-speaking countries after World War II the greatest of philosophical thought. Analytic philosophy as a philosophy of the language of the primary task, emphasizing the analysis from a purely logical point of view the formation and structure of language, advocated the establishment of strict accuracy of the German philosopher Frege is the pioneer of analytic philosophy, his mathematical logic and analytic philosophy, philosophy of language for the creation of the foundation, the Russell 1905 published Semiotics (Semiotics) is a symbol of symbol of the composition and changes of scientific theory. The so-called symbol is used to convey a communication process meaningful vehicle information. Such as the various legal terms and concepts in their very nature are symbols. Locke The main source of semiotic theory, however, the system is the establishment of semiotics American philosopher Morris, in his view the study of semiotic symbols should be primarily human language, it should study the relationship between three types: symbols with objects between symbols and human relations, the relationship between signs, study the relationship between these three types of subjects were in semantics, pragmatics and syntax, semiotics is by the three parts of a whole. Analysis of law and legal science in the current study of Chinese law, with the research orientation of sociology of law-oriented and analytical studies have developed, however, as the legal construction of social reality urgent request, the former is clearly more than the latter. Sociology and economics of law will be widely used method of legal research, so many of the law in the current research results, strictly speaking, the majority of the law should be vested in the context of sociology and law and economics. For the basic concepts of law and logic of the few, in fact, this study has largely been ignored 23. There is a prejudice that, like such as analysis of law from social reality, the concept of a simple form of analysis can not solve practical problems, as the medieval scholastic philosophy, as immersed in But the end is a narcissistic art of Dragon only. Such prejudice is quite popular, so in the current Chinese legal circles, the concept of law and the reputation of law is not very good, although the exact analysis of the concept of law and legal research in China has not yet begun. In fact, the because we do not recognize this, and therefore, in the current legislative and judicial practice, the basic concepts and logic of the ambiguous, ever see the problems caused by more. Therefore, the research out of pragmatism color way too thick, Submerging in the exploration of basic theory is very important, but to achieve this purpose, the establishment of a purely legal science is indeed inevitable. Analysis of law and the rule of law In fact, the analysis of the emergence of law is not Xuezhi development of general results, but certain social and political background dictates, in authoritarian societies, the so-called However, in a democratic society, the law from the subjectivity, arbitrariness to objectivity, universality, the main indicator of this change is increasingly evident logic of the law convex, legislators are also under the constraints of legal logic, and When people will be delivered to the laws of their own destiny and not the logic of the will of the dictator, the social justice to which we get the basic protection. Therefore, modern society is an important feature rule on the legitimacy (Legitimacy) rather than mandatory dependency has become stronger, Habermas believes that the so-called order worthy of the recognition. He said: So, in modern society, U.S. new home Dworkin natural law that the law is the main source of the legitimacy of the integrity of the law, 26 so-called integrity (Lawasinteregrity) contains two principles, namely, the integrity of legislative principles and the principle of judicial integrity, which requires law 27 Of course, Dworkin's consistency. On the internal logic of the law is the law of the task analysis, analysis of the jurisprudence of law as an independent science, 28 it makes modern judicial independence possible on the Theory of Knowledge, and its political significance as September 21, 1895 on behalf of United States Code, the famous sports figures Rumsfeld (DavidDudleyField) at the opening ceremony of the University of Chicago Law School, entitled justice will not be trampled on, do not abuse the greatest protection, if the judicial decision depends only on the will of the judge and his concept of justice for our property and lives would be highly arbitrary capricious decision of the threat. Therefore, the analysis of law as the main method of jurisprudence as a science there is an inherent requirement of the rule of law, its social function is on the absolute power of the checks and balances. However, the modern jurisprudence to achieve its digestion dictators and legal interpretation of the law created a monopoly and it must rely on a legal career of the Community, it supports the Law as an independent science, and Law and is Mutual commitment between the two auxiliary relations is the essence of the Western legal tradition lies. Berman in It notes the rise of the 12th century the century of law, and comments of law and jurisprudence is the first bud. Legal Notes at the time gave birth to a legal professional groups, and to obtain the power of discourse, along with the status of jurists increasingly significant, to date, jurists eventually become the modern Western society, the political balance of power in particular sectors of the Group. Analysis of Law and Legal Education Chinese society is gradually moving towards the formation of professional groups, the formation of this group of Chinese legal education should be a fundamental objective, to achieve this goal, China should focus on the one hand, the social system of legal education reform, legal education and legal profession to promote the combination,You are not allowed to view links. Register or Login, making law school graduates to become a major source of Chinese judges, or that the judge made after China's legal system and Yan Gede; the other hand, China should focus on the internal content of legal education reform, training of law students strict legal thinking, that is, strengthening the originator of American legal education advocated by the so-called blue-del Jurisprudence in the United States, despite all the sparse legal thought such as realism, law, social law, critical legal and other frequently debut, blowing hot and cold, however, analysis of law is still the basic American law students professional training content, such as Blue Dell's focus on law formalism At present, China is still a lack of law students that the training of legal formalism, the reason one hand is the formalism of Chinese law system is not fully formed, on the other hand the analysis of the jurisprudence of law is very weak, even not as a basic legal education, professional training into the system being, of course, this requires a longer time to build.
People Law Section in the types of knowledge and analysis of the status of law First, the Chinese Civil learn the meaning of the Civil Code (civillaw ), the level of a narrow understanding of this concept especially to the Roman - Germanic Law Private Law Origins of the European continent, so the civil law, also known as civil law, in this sense, civil law is a relatively closed system, if it deviates from Rome - the primitive Germanic law, it will not become a civil law. However, the level of understanding of the broad, civil law is private law, or that the Basic Law of the Civil Code is private law, in this sense, civil law should be a relatively open system, but not limited to a particular law. I think that when we say that China's civil hours, where after the civil law should refer to the significance of the surface layer, although the history of the main following the Chinese Civil Law Civil Law. For this position is very important, as it relates to our knowledge of the Chinese civil law understanding of the types, but also related to our current situation of Chinese Civil Law of assessment and reflection, but also related to the future Chinese Civil Law knowledge construction. Two types of knowledge: folk knowledge and analysis posed by the concept, the concept of the type determines the type of knowledge. American law the concept of anthropologists Bo Henan will be divided into two categories, one is the so-called The concept of folklore is the concept of inherent system of a nation is a nation in its long development process of the evolving concept, the concept of not belonging to any u> Sociology [/u] the number of home and social anthropologists created the scientific method with the concept of system. extent of the concept of a folk system of 2 is mainly the product of Roman folk nation, of course, Roman law continued to today, during which comments after law, the transformation of the concept and process of law, in the Roman law concept of the folk system has been mixed with a large number of analytical concepts, but these analytical concept does not completely change the basic structure of the original Roman law, they are just attached to the Roman law concept of the original folk above, to assist Roman the old legal structure to deal with the real world. Three, folk and Analysis of Civil Law Civil Law According to the above discussion, we can the knowledge of civil law in the initial fall into two categories, one is evolved with a strong history folk knowledge of color, the other is the rational construction of a universal knowledge. Practice civil law in the Roman and Germanic law in the basic content of the main civil law developed into the knowledge of history, and modern analysis of law is largely rational construction of knowledge. The former can be called the folk civil law, which when applied to the study of civil law, civil law can be called the analysis, the future development of civil law will certainly tension between these two kinds of knowledge being started. Analysis of Law did not think of a Thousand Years of civil structures is the structure of natural and civil law, only that the inherent mechanism of the Civil Code is a uniform constant, while the internal mechanism of the interpretation of civil law from outside the civil law it can be turned into endless form, and Rome - the Germanic system of civil law structure is a kind of endless possibilities only, as the internal structure of all languages is constant unity, but the specific shape of the national language is colorful. Austin said: other people do not understand the law a person can not truly understand their own national laws. We can also say: an analysis of civil law do not understand people who can not really understand their own nation's civil law. Perhaps history has been verified, Rome - Germanic civil law system, the structure may be the most suitable for people in social life and intelligence of ordinary people best suited to a structure, but this does not mean it is perfect, It is the most scientific. Of course, we must also bear in mind, the law is a very strange guy, for the law, the most of science is not necessarily the best, which is of civil law sometimes Fact, in many cases, a living landmark Civil Law mechanical knowledge to folk of civil law or civil law is not appropriate, such as the Roman civil law as a kind of folk, which already contains Analysis of a large number of very sophisticated concept. Blackstone in preparing the 3 This is the Roman law was widely circulated to the reason, otherwise, a pure folk thing is impossible to conquer the world. Fourth, the function of civil law of Civil Law Civil Law for the folk can afford a reflection, understanding and critical functions to help us more in-depth understanding of a folk Civil Law , as the West's natural science can help us understand some of the ancient Chinese as production techniques. Present, the Chinese mainland and Taiwan civil law doctrine of successor mainly through Germany. However, due to our lack of a purely legal science (analysis of civil law) as Xuezhi the support, therefore, on the theory of civil law in Germany and Taiwan reflect a lack of internal capacity. Therefore, China now seems to be a lot of civil law confusion, we tend to dwell on some abstract legal problems among countries, even though other countries may not be legal problems is our real problem, but we have to follow the civil law concept of their limited the direction of research continues, and a breakthrough can not go beyond civil law in the history of the formation of an established concept. Such as the distinction between property rights and claims have been dominated by some of our new property rights, and the breeding of many fuzzy concepts 4. Now, some academics have already pointed out: create international rules and legal experience to form a fully inclusive and eclectic self-confidence, there is no need longer follow a foreign law by following the road back. We should learn from foreign law, but this reference should be open and flexible, rather than recognize only one system, a code, a model. in fact play a State of Law 6 five civil law of the other types of knowledge In addition, the need to note is that the knowledge about the types of civil law only in the binary sub-laws also not comprehensive enough, but also civil law should include several other types of knowledge: 7 First, civil law or civil law doctrine of interpretation, legal dogmatics (legaldogmatics) is a value system will be considered as an absolute authority, and made the basis of their In fact, the administration of justice in their daily activities, the work of judges and lawyers are engaged in teaching or interpretation of civil law civil law work. 8 two non-strict legal sense of the Civil Law Civil phenomenon that is social science subjects such as civil Economics , Civil sociology, they have not the nature of the disciplinary norms but the fact that the nature of the subject, they are just a branch of economics or sociology, rather than strict legal sense of the branches, but their methods have been widely used in civil law scholars, civil research, especially commercial research. Perhaps, someone will ask the question, we usually used as a , both containing the folklore of civil law, because the Roman civil law in China today is still, according to an important position, it also contains the analysis of civil law, because it also many legal concepts and legal structure for rigorous logical analysis, it also contains the doctrine of civil law learn, because it has to elaborate the existing civil law system in China, it even contains a civil economics and sociology of civil law, as it is to advocate and demonstrate why a civil law system is reasonable or absurd. Six, drawing maps of the significance of the knowledge of civil law the past, few scholars of civil law made a classification of the type of knowledge, but today we have the knowledge to paint a map of civil law because Yiping this map, we may understand that we are engaged in the civil law of a specific nature of the study is only possible to understand the nature of the civil law of different methodological boundaries, it may be to understand China's Civil Code learn what is in a way, the only possible understanding of Chinese Civil Law has done those jobs, which did a good job, what kind of work done well and what has not yet begun to do, what has not thought to be do. Objectively speaking, the folk of civil law, the Chinese legal scholars have done a lot of work, because our civil law system is to the Roman - Germanic civil law as the basic structure set up, but we it seems as all the civil law, and thus it may seem obvious, but very few people reflect on what law should also include other. Of course, the civil law to explain science in a worldwide trend of philosophy has been under the influence of great importance in Chinese civil scientists, but research is not enough depth. The analysis methods such as civil law concept analysis and logic analysis, we are not perceived to use, but never truly be regarded as an independent knowledge of civil law, if the independent status of knowledge are not really understanding and certainly, it is impossible to obtain systematic study, therefore, analysis of civil law in China is basically a blank, analysis of law for the Study of Chinese Civil Law is very weak. Law Section of the origins and spirit of the an analysis of the concept and scope of law defined as a legal ontology analysis of law as a legal methodology and analysis Law so-called As a legal analysis of legal claims ontological distinction between implied in law Xumiao among the formed a set of logical analysis and linguistic analysis-based systems and sophisticated legal analysis. As a Legal Ontology Analysis of Law and Law as a legal analysis of the general methodology is the integration of one. I believe that, as a legal analysis of the ontological claims of law and disregard the fact that the value of legal factors, loss of too narrow, but the law as a legal analysis of the methodology is a valuable asset. Anglo-American analytical jurisprudence and analytical jurisprudence in other countries In addition, the analysis of law in its extension of the concept also has two levels of meaning, in the narrow sense, the analysis of law refers only to Britain and the U.S. of the Bentham, Austin for the origins of positivist law schools, in general, the analysis of law refers to legal positivism in the history of all to the spirit and methods as the basic law schools, so here we will comment of Law , the concept of law schools and other areas all being included in the analysis of law. Analysis of law is the law when the human civilization to a more mature state occurs when a law school, a more mature legal generally bear with three factors, namely, the value of facts and logic, the law covered in Components of the logical factors which formed the basis of law. Roman law is the law of human civilization in the history of an earlier maturity of the development of legal phenomena, therefore, the 11th century to the 15th century to the Roman law as the main subject of the French 19th-century German notes the concept of law and legal practice already contains quite a full analysis of the law the bud. After the development of the capitalist economy as the law requires systematic and increasingly urgent accuracy, legal form factor that highlights the growing importance of logic elements, a more complete legal form - the analysis of modern British and American Law The trend appears to be inevitable. Below, we analyze the basic legal concepts of law analysis of the clue, the simple comb the origins of law. Second, the analysis of the Origin of Law: A Conceptual Analysis of the law as a clue common law and civil law are two disparate legal traditions, the former to empiricism as a philosophical basis, after are the basis of rationalism as a philosophy, the former as Ezra Pound said: justice in cases as required by the case to the next case, cautiously, and not to resort to set everything back the general. rationality above a level of formality to it, the legal system of the internal factors are decisive scale; has reached its logical that a degree of specific norms and principles of law are consciously creating a special mode of thinking in law, the the kind of systematic thinking logic of high wealth, and thus only from the pre-set norms or principles of legal interpretation of a particular logic program in order to obtain judgments on specific issues. methods of legal formalism. Philosophy of reason under the influence of the seed law first appeared in the civil law, French law and German comments is to analyze the concept of Law of Law on the European continent the two main origins. When immersed in civil law jurists among the speculative reason, the common law jurists have experience of being intoxicated on the absolute trust of being. Perhaps the common law in the bud, and it appears first as What should be the one the Chinese old saying: Origins of Law and one of : Notes Legal Notes Legal 11th century in Western Europe appeared to a 15th century to confront the legal and theological schools. As Roman law with the collapse of the Roman Empire disappeared in the reign of medieval theology, Roman law was brilliant moment has been known, until 1080, an important text of Roman law, The face of this discovery, people's feeling that as the year when the San Yi-long 10 Thus, transcription and research, A distinguished teacher in the ancient Arab Cornelius under the influence of Bologna Law School, becoming the center of Roman law, and became the birthplace of Law Notes. Note the main work and contribution to the law, as Berman in legal system can be almost totally from the previous social conventions and the general system of mixing politics and religion as one born out of various out of the old legal order. Greek philosophy. Ancient Greece and Rome is two very talented people, Greek talent show, in theory, the Roman genius manifested in practice, it can be said of philosophy, especially Aristotle's logic is Greek the performance of talent, but Rome is the Roman law of gifted performance. Law in the comments there, the gift of the two nations are combined together, and this combination of law fully reflects the methods of the comment. Comment early in its development of Law (13 centuries ago) the use of the method is a method of scholasticism 12, the Greek scholar Aristotle's logic applied to the interpretation of the classic literature of Roman law and Finishing. This approach is: to presuppose the absolute authority of the Roman classical literature, they are considered to contain a comprehensive and complete system, while it also assumes that there may be omissions in the text and contradictions, and then, using logic method to fill the omissions, to eliminate the contradiction. 13 century to the 15th century under the leaves, comments on the Roman Law of major changes have taken place, no longer rigidly adhere to the classic texts of Roman law comments to Cappuccino and Baerduolu comments represented jurists on the basis of comments in the early to begin refining the legal concept (such as the concept of property rights and claims), summarized the basic rules of abstract general principles, a legal analysis of the structure, not only rough, messy system of Roman law, but also the law to become an independent science. So, later also known as Law Review of Law Notes. Origins of the Second Analysis of Law: Legal Concepts and Notes Roman influence gradually into law in Germany, in 1495 the Holy Roman Empire Roman Empire began to use the courts. In the process, following the Roman Law, German born with its Originated the concept of law after the mid-19th century evolved from the history of law, the analysis of legal concepts and construction of the structure of the legal system. Porting the concept of hair at the Pan Deke Law jurists Puxi Da Dayton, master of the temperature Te Xiate. Concept of law is very superstitious rational ability of jurists that the rational construction of the code enough to cover and address all social problems. They have a persistent pursuit of the law is designed as an exquisite form, when people examine the facts of a specific social relations that are included in the law, just follow the strict logic, through the draw accurate conclusions. Japanese Civil Law scholars Kato, Ichiro had been to a definition of the concept: leads to mechanical, in the form of conclusions. has never been the concept of law is. it just as vending machines, input from the above facts, in which the so-called pre-determined applicable law, and then automatically come out from the following conclusion. era in which the family is the Weber law developed the concept of time, Weber said the legal formalism (formalism) is against the law in terms of the concept. Although the concept of law on the ideal of legal reasoning can not help but naive, but refining the concept of law by all the abstract and sophisticated legal concepts, such as legal acts, facts, etc., are still important in modern theoretical basis of civil law, still hard to beat. It should be said, the concept of law attitude of excellence for the legal concept of blame, because, as legal scholars and legislators, as much as possible to summarize the complicated social reality to the concept of a robust legal system, and that this is their duty, rule of law itself nature of the request, but not for abstract concepts that refining and rigorous logical reasoning, generous to his left to the judge, is quite a lazy approach, is also incompatible with the nature of the rule of law. Therefore, the Chinese concept of law jurists for excessive criticism is reckless and superficial. In fact, the concept of law meritorious legal history in the West, the concept of law presided over the drafting of the master temperature Dexia Te u> Computer [/u] As for the concept of law is most violent and vitriolic attack is Pan Deke Dayton School of Law, 14 In fact, the concept of law is essentially a method of law, this method should not be criticized themselves, and should be subject to criticism but that extreme approach, however, many people criticized the concept of law, the puts have abandoned this approach, make things a mess. Because the law have become the law, and even the rule of law have become the rule of law is that it is the most essential way to the concept of law, it is formed by the construction of the concept of rules. If taking this one, law not become law, the rule of law will become the rule of man. In conclusion, Yellin criticism of the concept of law, the passage said Radbruch is very calm and fair: freedom of the individual followers of law school as the object of violent attacks, but this attack is actually not against the law of the structure (the concept of law), but only for the construction of a false way. criticized the concept of law given to those who like to get too far but people are always criticized. Concept of law in the late 19th century, after the lawyers Merkel, Post, Meyer, represented by the concept of legal positivism and gradually transformed into German law school, also known as the new concept of law, it is also the analysis of law a tributary of the family, but with the Anglo-American countries, compared to pure analysis of law, the idea of deep flow from Bentham and Austin is not the tradition, but rooted in German tradition of local law, the history of law and concepts of law. Analysis of Law from the different legal systems and country breeding and developed independently, this also shows that analysis of law is the rule of law and legal development of the internal trends and requirements. Here, a description of the above analysis has pointed out that the law narrowly is the Anglo-American countries, Analytical Jurisprudence, and the concept of law is a native of Germany, objects, however, both in methods is the same, so, many scholars compare the two, such as the Japanese Civil scholars Ichiro Kato description: (analyticaljurisprudence) way of thinking can be said that the early 19th century to the 20th century way of thinking about the concept of law reigns. > Europe in the 18th century onset of doctrine, the birth of analytical positivism as an important philosophical background. Is the history of modern analytical jurisprudence from the then British jurist Jeremy Bentham (Bentham) of the book Bentham believes that the source was born in British common law and customary law difficulty that he increasingly felt the systematic analysis of the logical structure of the legal system is a very necessary foundation work, so, Bentham in the Analysis of Law for the mountains. Another Bentham's writings theoretical origin. Bentham Analysis of Law in Austin students thinking of even more far-reaching, he is very focused on the empirical analysis of basic legal concepts, such as the objects Austen's classic, Of the United States by the law of the United Kingdom, since the independence war, the trend in U.S. law as the essential characteristic of a logical interpretation of the formalism (Formalism), particularly in the late 18th century, legal formalism performance is even more apparent. Dean of Harvard Law School, 1870 Blue Dell (Langdell) created by case analysis (thecasemethodoflegalinstruction) was legal formalism (legal reasoning) to provide a set of analytical methods. Blue Dell that: the law by the limited number of basic theory and principles of composition, the principle of legal development of basic theories and concepts from the development of the principles of logic. So, he put great emphasis on law in the form of consistency, objectivity and predictability. In his American jurist Friedman in his famous 16 Blue Del ideas and methods of the law was severely criticized by Holmes, Holmes in his masterpiece Under the impact of the Holmes, the mainstream of American law tend to gradually from the Analysis of Law Legal Realism, however, analysis of law is still in the further development of the concept of the Blue Dell doctrine (conceptualism) of the case analysis is still dominated American Law School of Law education. American jurist Gray (Gray) (1839-1915) inherited the tradition of analytical jurisprudence, in his famous differences and was particularly confusing 18 emerged early in this century's great masters, another analysis of law is the American Austrian jurist Hans Kelsen (1881-1973), he founded the Pure Theory of Law, the norms of law, claims the law as Because only the legal theory not only with justice and with the sociology of philosophy separate separate possible establishment of a genuine legal. Thus, Kelsen's Pure Theory of Law is the law about the relationship between structure and doctrine, that is purely analytical jurisprudence. Here, we should also specifically mentioned one of jurists, is the U.S. Hohfeld. Hohfeld 1913 and 1917 in the He said: ideas, we have to the rights, obligations and other legal relations of the concept of strict inspection, and classification differences. mother Hohfeld's analysis of legal thought on the U.S. legislation and practice has had a major impact, compiled by the American Law Institute, Hohfeld also remind us of the idea: some new legal phenomena such as equity and the trust property, not to rush to the qualitative, but should be detailed analysis of its internal elements, which is an anti-essentialism (anti-essentialistideas) of the Legal Method . In this paper, the second chapter will go into some detail Hohfeld's theory. Origins of Law and four: the Scandinavian legal realism Scandinavian legal realism analysis should not be overlooked is a positivist law schools, it main representative is 海格斯多姆 (Hagerstrom) and their students Olivercrona, Lunstedt, Ross and so on. This school of natural law is ignored, Friedman attributed in part to the lack of a strong Scandinavian tradition of the results of the Catholic Church. Of course, the Scandinavian legal realism, unique response and review. One, Ross published in 1957, . Third, analysis of the basic spirit of the law and its significance of the five basic spirit of the law In short, the analysis of law or of legal positivism, within a large family, tribes everywhere, thread interleaving, and classification of any sort can only be rough. However, very clear that they all have a common spirit and method, which is why they are labeled only in the name of law. So, this common spirit and method? New Analysis of Law Master summary Hart called the authority, he thought of Analytical Jurisprudence in the following five basic characteristics: First, that legal order is a human; second is that the law and morality or law and if the law is no necessary link between; third is that the legal concept of analysis is a significant work, which is different from the origin and operation of the legal history of science and sociological research, but also different from the natural law approach; fourth is that the legal system is a Some legal provisions, the logical way to interpret it; five is that moral judgments can not be the same as the statement of the facts, the evidence on the basis of reasonable inference to be confirmed. 21 various points in the above, the third and fourth highlighted by this article, and the introduction of civil law in this study, the other is not related to this article. Analysis of the philosophical basis of law: analysis of philosophy and semiotics academic law is impetuous, a mouthful of greasy, Should be recognized that, at present, China's legal philosophy and other disciplines, especially the gap is deep. This is an unusual situation. In fact, in Western legal history, law, any time on the progress with the progress of philosophy is inseparable to, such as Kohler and Hegelian origin, Kelsen and the new Hong German doctrine of the origin, Hart origins of analytic philosophy can be said that a new philosophical school there, it is often also in creating a corresponding law in law schools and thought leaders. 22 Analysis of Law's philosophy is based on analytic philosophy, semiotics and related (including semantics) and so on. Language of analytic philosophy is first and foremost, the main method of logical analysis to establish the so-called philosophy of science, which includes the logical atomism, common sense realism, logical empiricism, ordinary language school, The School of pragmatism, critical rationalism and historical sociological, etc., which formed in the beginning of this century the United Kingdom, is the impact of English-speaking countries after World War II the greatest of philosophical thought. Analytic philosophy as a philosophy of the language of the primary task, emphasizing the analysis from a purely logical point of view the formation and structure of language, advocated the establishment of strict accuracy of the German philosopher Frege is the pioneer of analytic philosophy, his mathematical logic and analytic philosophy, philosophy of language for the creation of the foundation, the Russell 1905 published Semiotics (Semiotics) is a symbol of symbol of the composition and changes of scientific theory. The so-called symbol is used to convey a communication process meaningful vehicle information. Such as the various legal terms and concepts in their very nature are symbols. Locke The main source of semiotic theory, however, the system is the establishment of semiotics American philosopher Morris, in his view the study of semiotic symbols should be primarily human language, it should study the relationship between three types: symbols with objects between symbols and human relations, the relationship between signs, study the relationship between these three types of subjects were in semantics, pragmatics and syntax, semiotics is by the three parts of a whole. Analysis of law and legal science in the current study of Chinese law, with the research orientation of sociology of law-oriented and analytical studies have developed, however, as the legal construction of social reality urgent request, the former is clearly more than the latter. Sociology and economics of law will be widely used method of legal research, so many of the law in the current research results, strictly speaking, the majority of the law should be vested in the context of sociology and law and economics. For the basic concepts of law and logic of the few, in fact, this study has largely been ignored 23. There is a prejudice that, like such as analysis of law from social reality, the concept of a simple form of analysis can not solve practical problems, as the medieval scholastic philosophy, as immersed in But the end is a narcissistic art of Dragon only. Such prejudice is quite popular, so in the current Chinese legal circles, the concept of law and the reputation of law is not very good, although the exact analysis of the concept of law and legal research in China has not yet begun. In fact, the because we do not recognize this, and therefore, in the current legislative and judicial practice, the basic concepts and logic of the ambiguous, ever see the problems caused by more. Therefore, the research out of pragmatism color way too thick, Submerging in the exploration of basic theory is very important, but to achieve this purpose, the establishment of a purely legal science is indeed inevitable. Analysis of law and the rule of law In fact, the analysis of the emergence of law is not Xuezhi development of general results, but certain social and political background dictates, in authoritarian societies, the so-called However, in a democratic society, the law from the subjectivity, arbitrariness to objectivity, universality, the main indicator of this change is increasingly evident logic of the law convex, legislators are also under the constraints of legal logic, and When people will be delivered to the laws of their own destiny and not the logic of the will of the dictator, the social justice to which we get the basic protection. Therefore, modern society is an important feature rule on the legitimacy (Legitimacy) rather than mandatory dependency has become stronger, Habermas believes that the so-called order worthy of the recognition. He said: So, in modern society, U.S. new home Dworkin natural law that the law is the main source of the legitimacy of the integrity of the law, 26 so-called integrity (Lawasinteregrity) contains two principles, namely, the integrity of legislative principles and the principle of judicial integrity, which requires law 27 Of course, Dworkin's consistency. On the internal logic of the law is the law of the task analysis, analysis of the jurisprudence of law as an independent science, 28 it makes modern judicial independence possible on the Theory of Knowledge, and its political significance as September 21, 1895 on behalf of United States Code, the famous sports figures Rumsfeld (DavidDudleyField) at the opening ceremony of the University of Chicago Law School, entitled justice will not be trampled on, do not abuse the greatest protection, if the judicial decision depends only on the will of the judge and his concept of justice for our property and lives would be highly arbitrary capricious decision of the threat. Therefore, the analysis of law as the main method of jurisprudence as a science there is an inherent requirement of the rule of law, its social function is on the absolute power of the checks and balances. However, the modern jurisprudence to achieve its digestion dictators and legal interpretation of the law created a monopoly and it must rely on a legal career of the Community, it supports the Law as an independent science, and Law and is Mutual commitment between the two auxiliary relations is the essence of the Western legal tradition lies. Berman in It notes the rise of the 12th century the century of law, and comments of law and jurisprudence is the first bud. Legal Notes at the time gave birth to a legal professional groups, and to obtain the power of discourse, along with the status of jurists increasingly significant, to date, jurists eventually become the modern Western society, the political balance of power in particular sectors of the Group. Analysis of Law and Legal Education Chinese society is gradually moving towards the formation of professional groups, the formation of this group of Chinese legal education should be a fundamental objective, to achieve this goal, China should focus on the one hand, the social system of legal education reform, legal education and legal profession to promote the combination,You are not allowed to view links. Register or Login, making law school graduates to become a major source of Chinese judges, or that the judge made after China's legal system and Yan Gede; the other hand, China should focus on the internal content of legal education reform, training of law students strict legal thinking, that is, strengthening the originator of American legal education advocated by the so-called blue-del Jurisprudence in the United States, despite all the sparse legal thought such as realism, law, social law, critical legal and other frequently debut, blowing hot and cold, however, analysis of law is still the basic American law students professional training content, such as Blue Dell's focus on law formalism At present, China is still a lack of law students that the training of legal formalism, the reason one hand is the formalism of Chinese law system is not fully formed, on the other hand the analysis of the jurisprudence of law is very weak, even not as a basic legal education, professional training into the system being, of course, this requires a longer time to build.