Reflections on the Gate of Law 1 The Gate of Law is a common law textbook in American university law schools, which can be regarded as a mini encyclopedia of Anglo-American law. For a long time, the question of "what is law" has been constantly raised. Although people have customized various answers to the law in theory, the law in practice is often independent of people's ideas. In fact, law exists in the contest of various social forces, each of which carries the social needs of different groups, and each demand has its own reasons and values to meet in different scenarios and viewpoints. Reading "The Gate of Law" may answer all kinds of puzzles about law.
This is an unusual book, which puts forward many open topics and encourages readers to think independently. Its design makes it impossible for jurists to study law simply for the sake of studying law, but links law with other disciplines, aiming at encouraging the study of law in various ways: politics, sociology, anthropology, history, literature and philosophy. Therefore, every topic in the book can be used as the beginning, and other reading materials can be derived, so that readers can think about "what is the law" from multiple angles. The arrangement of these materials can always inspire you to think and explore the law in the broad background of culture and history.
Montesquieu said that law is the existence of reason. In the history of western philosophy, rationalism and law have a deep historical origin. However, people's law-abiding behavior in daily life is not so much because of the call of legal rationality as because of the violence behind the law. Although legal violence has been questioned by people, without the support of violence, the law will lose its guarantee. Therefore, legal violence "is not a celebration of its power, but only a factor that has to be tolerated and is difficult to explain."
However, in the daily judicial application, it is actually quite difficult to make a clear definition of the law, but as the famous American justice Oliver Wendell Holmes said: "The law is a prediction of what the court will actually do, not other hypocrisy and pretence." In the judicial process, once skills and crafts dominate, it will lead to bureaucratic results-it is a sad thing for all those who encounter such results. Is the judge a craftsman? Is it enough for a judge to understand the technical principles, interpretation rules, legal terms, conclusions and answers of the referee? The answer is no, because as a judge, he has certain values, and the purpose of judgment is to seek justice and advocate justice. What is justice? Justice is the purpose of law and an idealized compromise between personal life and everyone's activities in a crowded world. Explore the out-of-court alternative dispute resolution mechanism from the perspective of individual activity subjects, so that active individuals can subjectively agree to compromise. This is not only the way to solve disputes, but also the art of solving disputes. The judge is the referee of the above-mentioned judgment, and the concept of justice is the purpose of guiding the judgment.
Thinking about the Gate of Law 2 Before I started reading this book, what attracted me was the title of the Gate of Law. Because the second half of the course "Ideological and Moral Cultivation and Legal Basis" I teach is the basic content of law, I think reading this book will help me to further deepen my legal knowledge, which will be beneficial to teaching. However, after reading it, this idea is too elementary. Because there is such a passage in the translator's preface that "two skyscrapers collapsed, but it reminds people that the glory and dreams of Americans will not go with the smoke." It is the rule of law expounded and interpreted in this book that carries this glory and dream. The rule of law is not a panacea for all social diseases, nor can it stop Satan's madness, but it is indeed a pillar that supports the prosperity and stability of the United States for 200 years. " From this, you will find that this book is not simply about the general knowledge of the common law system, but a' comprehensive explanation' of the common law system, especially the rule of law in the United States. However, the way to explain the book is not blunt preaching, but to discuss the defects of the rule of law and Yu Yu, and then put forward thinking, without giving standard answers, to guide readers to think rationally. So, here, it is this book that attracts me to overcome the charm of not wanting to sit in front of the computer and read e-books for a long time.
In the process of reading, individuals also found one of their own weaknesses, that is, because they are not from a legal background and have not systematically understood the knowledge of the common law system and other systems, so when they see the contents presented in the book, they can't help but feel overwhelmed. However, I still have some ideas based on my own thinking.
"In fact, everyone has the image and expectation of the law in his mind. These images and expectations come from TV, newspapers, personal experiences and family history." "When I hear the word law, what is the first word that comes to my mind? Write down some sentences, describing the contents involved in the law, the places where legal acts often occur, and the most commendable and boring places of the law. You may be surprised at the richness and sexiness revealed by new knowledge. " The question this passage gives me is: Why don't we pay attention to real life when thinking about law? Although we will consider many practical legal cases in our life, the characters in legal cases will always have a certain distance from us, which is far less attractive than the way the author thinks about law.
In the knowledge we have mastered and taught, we often put forward the proposition of "knowing the law, understanding the law, abiding by the law and protecting the law". Llewellyn also mentioned that "knowing the law is beneficial, even if it is evil". However, Llewellyn further revealed five reasons why knowing the law is beneficial: First, if he is ignorant, he can learn from them and benefit from the knowledge of pioneers. Second, if he is lazy, he can pay attention to the behavior of his predecessors and benefit from their diligence. Thirdly, if he is stupid, he can benefit from their wisdom. Fourth, if he is biased or corrupt, the existence of past routine practices will give him an open inspection and supervision of prejudice or corruption and limit his wanton behavior. Fifth, even if the predecessor was lazy, ignorant, stupid and biased when establishing the convention, knowing that he will continue what his predecessor did will provide a basis for people to predict the behavior of the court.
Although the above five reasons are Llewellyn's comments on why the initial knowledge of law is beneficial to the precedent judgment that judges should follow. But for the general public, these five reasons still exist and should be the reasons why our laws should benefit everyone.
Today, we regard the rule of law as a means to achieve social fairness and justice. However, what is justice? Is justice idealism? Roscoe pound made his own interpretation of this. He pointed out: "We all need the earth, and we all have many wishes and needs to meet. There are so many of us, but there is only one earth. Everyone's wishes constantly conflict or overlap with their neighbors. Therefore, it may be said that this is an arduous social project, and its task is to create materials and means to enable people living in dispute organizations to survive and meet their wishes and requirements. Even if these materials and means can't meet everyone's needs, at least everyone should have one as much as possible. This is why we say that the purpose of law is justice. We don't think justice is a personal virtue; We don't think that justice is idealism between people. We believe that justice is a system, and we mean such a relationship adjustment and behavior rule: it will make the living material meet the means that human beings need to enjoy material and take action, and everyone can share it with the least friction and waste. " What is justice? Namely fairness, justice and kindness. What is the rule of law? Good law and good governance. Therefore, judicial institutionalization is the rule of law that we strive for today. Such a rule of law has three fundamental functions: stopping disputes at fixed points-reducing friction; Realizing justice-the realization of legitimate interests; Guide people to be good-live in harmony with our only earth.
However, the basic principle of the rule of law is that "human beings are rational beings driven by self-interest (easily influenced by rewards and punishments) (able to abide by rules)." This puts forward a requirement for us, "to have some utopian beliefs." First of all, we must believe that reason is the basis of behavior. Secondly, we must believe that legislators have the ability to design such a set of rules: broad enough to cover the whole range of human beings, but detailed enough to take advantage of specific conflicts; Flexible enough to allow for change and stable enough to generate expectations. Therefore, the rule of law is a belief system, which does not belong to an unquestionable aspect of human existence. "We also have high hopes for the rule of law. In governing the political, economic and cultural life of a country or an individual, we should analyze and solve problems by using the thinking mode of rule of law under the guidance of the concept of rule of law. But in this process, we can't ignore a major premise, that is, good law, which should have four characteristics: extensive, meticulous, flexible and stable. A good law with the above four characteristics will inevitably become a rational belief system for human beings.
Finally, the conclusion after reading this book with Piaget's words: "The less introspective the mind is, the more it becomes a victim of the illusion that it thinks it knows itself."
After reading the door of law 3. In front of the law, stood a janitor. A countryman stepped forward and asked for access to the law. But the doorman said he couldn't go in yet. The man thought for a moment and asked if he could go in later. The doorman said, "It is possible, but not now."
Seeing that the door of Fa was open as usual, the janitor stepped aside, and the man bent down to see the world inside. When the janitor saw all this, he smiled and said, "If it appeals to you so much, you can try to break through my imprisonment, but please remember that I am strong and I am only the smallest janitor. Every door has guards, and one is better than the other, so the third guard doesn't even dare to look at him. " The difficulty is so great that rural people have never thought of it. He thought that the door of the law was open to anyone at any time, but now when he carefully observed the janitor wearing a fur coat and saw his pointed nose and long, dark and sparse Tatar beard, he decided to wait until he was allowed in.
The doorman handed him a small bench and sat him by the door. He sat there day after day, year after year, trying to get in many times and tirelessly asking the doorman to let him go. The doorman just listened casually and asked him about his hometown and many things. He asks questions like a big shot, but in the end he always says he can't go in. The man made full preparations for the trip, and now he bribed the doorman with everything of value. Although the doorman accepted all the bribes, he said, "I only accepted the gift so that you wouldn't have the illusion of losing something." Many years passed, and during this time, the man looked at the doorman almost intently, and he forgot the existence of other doormen. It seems that this first doorman is the only obstacle for him to enter the practice. He cursed the unfortunate experience.
In the first few years, he acted rashly and spoke loudly. Later, when he was old, he had to mumble and talk to himself. He became naive, because he observed the janitor for many years, so he was familiar with the fleas on his fur collar, so he also asked them for help, hoping to change the janitor's attitude. Finally, my eyes were dim, and I couldn't figure out whether it was really dark around or something was wrong with my eyes. But now he found a ray of light in the dark, stubbornly through the door of the law. Now his life is at stake. Before he died, all his past experiences gathered in his mind into a question, which he had not asked the doorman.
He motioned for the doorman to come because he was too stiff to stand up. The change of their height dwarfed the man, so the doorman had to bend down deeply and ask, "What do you want to know now?" He said, "You are too greedy." The man said, "Don't everyone want to know what the law is?" Why has no one asked to enter the door of law except me for many years? The doorman found that this man was dying. In order to touch his failed hearing organ, he growled at him, "Actually, no one else is allowed to enter here, because only you can open this door. Now I'm going to close the door and leave. "
The Gate of Law: A short story in the novel The Trial can be found in many modernist thoughts. A person who wanted to enter the door of Buddhism all his life didn't realize it until he died. "In fact, no one else is allowed to enter here, because only you can open this door." The doorman who has been trying to stop this man from entering the door all his life is "going to close the door and leave." Door, mirror and maze are the favorite images of modernist writers, because these things are opposite, one side is bright and the other is dark, but only Kafka sets the image of door from a one-way angle.