[author] Jiang Tao (Doctor of law, Professor, School of law, Nanjing Normal University, researcher, China Institute of legal modernization, Nanjing Normal University)
[reprint source] column of "monograph" in the second issue of jurist in 2020. Due to its long length, the original notes have been omitted.
Abstract: there are few specialized works in China's legal field that systematically study the function of legal dogmatism. The purpose of studying the function of legal dogmatism is to answer the question of the service object of legal dogmatism. If its function is not clear, it will inevitably lead to the dispute of position, method and subjectivity, which will make legal dogmatism become a "game without chassis". Legal dogmatism is the theoretical construction and knowledge reserve of jurists for the application, evaluation and shaping of norms, which has two basic aspects of justice and legislation. Among them, judicial oriented legal dogmatism has three functions: the proper settlement of cases, the coordination between case handling and the ideal of clarifying social development. The legal dogmatics oriented by legislation is to clarify the contradictions, the violation of the principle of definiteness or the loopholes of punishment in the legal norms through doctrinal analysis, so as to promote the improvement of legislation and ensure the goodness of law.
Key words: dogmatics of law; social science and law; dogmatics of criminal law; normative loopholes; good law and good governance
Summary of the catalogue of jurists No. 2, 2020 (179 in total)
catalog
Quotation
1、 The existing research in Chinese law circle and the starting point of this paper
2、 Two aspects of legal dogmatism
3、 The function of legal dogmatism oriented by judicature
4、 The function of legal dogmatics in legislation
Conclusion
In recent years, the doctrinal theory of quotation law has developed rapidly in China's legal circle. The academic research that affirms the doctrinal theory of law or carries out concrete and systematic analysis with the method of doctrinal theory of law has attracted more and more attention of Chinese legal researchers. At the same time, dogmatics of law is increasingly combined with some branch laws, and "constitutional dogmatics" and "criminal dogmatics" have gradually become an upsurge of research. Among them, the most typical one is the doctrine of criminal law. Many Chinese criminal law scholars interpret the ontology of criminal law as the doctrine of criminal law, and strive to realize the paradigm transformation of the study of criminal law from the theory of legislation to the theory of interpretation. Behind this kind of academic development and prosperity, we can see two kinds of phenomena: one is what is the methodology of legal dogmatism and what is the position of legal dogmatism, which has been discussed in depth by the Chinese law circle; the other is what is the basic function of legal dogmatism, which has not been widely discussed by the Chinese law circle, to some extent, it can be said So far, it is still an area of unclear scope. In the face of the above deficiencies in the study of legal dogmatism, we should think carefully: is it necessary to study the basic functions of legal dogmatism? If the answer to this question is yes, how to construct this theory? Legal dogmatism is the key to communicate jurisprudence and departmental law. From the perspective of function, the image of legal dogmatism will show new notes. Therefore, this paper starts with the current research on Legal dogmatism in China's legal circle, puts forward the significance of the research on the function of legal dogmatism, and then combines the discussion on the problems of legal dogmatism in the current legal circle, puts forward two levels of legal dogmatism analysis, and finally clarifies what the respective functions of legal dogmatism are at the legislative and judicial levels, so as to further enrich and develop it Dogmatics of law. First, the existing research in China's legal field and the starting point of this paper legal dogmatism is a kind of knowledge construction with a bright future. It is inevitable for judges to have personal preferences in adjudication. Empirical research and analysis show that judges may have preferences for familiar theories, which are often provided by legal dogmatism. It is not hard to see that, with the gradual expansion of the influence of the academic discussions on Legal dogmatism and social science law in the Chinese jurisprudence circle, the discussions on Legal dogmatism in the Chinese criminal law circle are also constantly warming up, which has become a prominent trend. This kind of discussion involves not only the debate on the discourse power of legal dogmatism (for example, whether it is necessary to promote and develop the legal dogmatism in addition to the legal hermeneutics), but also the debate on the position and method of the legal dogmatism (for example, to insist on the theory of violation of norms or the theory of infringement of legal interests). At the same time, many scholars have launched the legal dogmatism analysis on the specific problems in the criminal law. In conclusion, the current research on dogmatics of law in the field of criminal law in China can be roughly divided into three fields: (1) methodology of dogmatics of criminal law. The methodology of the doctrine of criminal law involves two levels: macro level and micro level. As far as the macro level is concerned, some scholars divide the doctrinal methods of criminal law into the methodology of criminal law interpretation, the methodology of crime constitution, the methodology of case fact identification and the methodology of criminal law demonstration. From the micro perspective, some scholars have established a three-stage interpretation procedure for the doctrine of criminal law, which is in line with the norms and can be tested: the understanding based on foresight, the measurement of practical rationality, and the test of legal basis. (2) the position of the doctrine of criminal law. The position of the doctrine of criminal law is controversial in China's legal circle. For example, Feng Jun defined it as "maintaining the effectiveness of legal norms". In this regard, Zhang Mingkai pointed out in his argumentative paper that "the theory of protection of legal interests can properly explain the norms of criminal law, which is conducive to the realization of the purpose and task of criminal law, and Feng Wen's criticism of the theory of protection of legal interests is difficult to establish." It can be seen that there is no consensus in Chinese criminal law academic circles on whether the dogmatics of criminal law adheres to the basic position of the doctrine of violation of norms or the doctrine of infringement of legal interests. This kind of stand dispute is actually the continuation of the theory of violation of norms and the theory of infringement of legal interests in the field of criminal dogmatics. (3) a case study based on the doctrine of criminal law. The number of such research results is the largest. For example, some scholars take the doctrinal interpretation of self-defense as their research content, some scholars study the doctrinal problem of criminal law of theft with murder weapon, some scholars carry out the doctrinal analysis of the elements of pickpocketing, some scholars carry out the doctrinal analysis of "seeking improper interests" in bribery crime, some scholars distinguish the doctrinal method of law and the consequentialist method applicable to cases There are also scholars who have constitutional explanations on the criminal punishment of the national staff's embezzlement, and scholars who have legal doctrinal reflections on the perpetration of helping behavior, etc. But in addition to the above three research fields, there are few scholars who study the function of legal dogmatism systematically. What is the function of legal dogmatism? Scholars engaged in the study of legal dogmatism still need to extend their thinking to make the knowledge system of legal dogmatism more complete. The function of legal dogmatics is the effect that jurists expect to achieve when they analyze legal dogmatics and construct their knowledge. Legal dogmatics takes the function as the premise, and its function runs through the analysis of legal dogmatics. The so-called "the absence of skin, the absence of hair", the lack of functional study of legal doctrinal research, although "the noise of the crowd", but it is difficult to "deep rooted.". The premise of discussing the function of legal dogmatism is: does legal dogmatism have two basic aspects of legislation and justice? Second, the two aspects of legal dogmatism are a theoretical normative solution. This kind of normative solution not only serves for the judicial practice, realizes the standardized shaping of judicial practice, avoids the improper interference of political and other factors in the judicial practice, and realizes the judicial justice, but also serves for the legislative practice, and promotes the legislation to be good through the discovery of problems such as normative loopholes, normative contradictions or normative injustices. (1) judicial oriented legal dogmatics judicial oriented legal dogmatics is to provide a ready-made theoretical solution, just like accepting mathematical formulas, judges can make just, proper and collaborative judgments on cases by using this theoretical solution. For example, the three logically related theoretical tools, which are the conformity of the constitutive requirements, the illegality and the accountability, constructed by the theory of crime, are very helpful to deal with the relationship between entering crime and exiting crime, and between felony and misdemeanor. Dogmatism of law, based on the perfection of current law, is based on the explanation and thinking of existing legislation. It does not ask what criminal law is, but it does not mean that it does not consider how to think about criminal law. In other words, it does not criticize the current law outside the system, but reflects the current law within the system, so it does not deviate from the orbit of judicial focus. As Ling bin pointed out, "the specific position of legal dogmatism determines its specific methods. One of the outstanding characteristics of legal dogmatism in its position and methods is its judicial centralism." In this sense, the doctrine of criminal law is roughly equivalent to the "normative alliance" between the criminal law and the criminal code. Both parties jointly perform "sitcoms" in the application of criminal law, so as to finally achieve a "happy" outcome. The dogmatics of criminal law facing the judicature emphasizes that the norm of criminal law is a forbidden area that cannot be broken through by the dogmatics of law. The dogmatics of law answers the question of how the norm of criminal law should be applied in the way of "the explanation of jurists". The idea and method of the interpretation of criminal law reside in the norm of criminal law, which needs to be logically developed with the norm of criminal law as the center, or figuratively speaking "Dance with the standard shackles.". Dogmatism of law is based on the evidence of serving the judicial judgment. It not only involves the description of legal concepts and legal facts (mainly the pre formation), but also involves the logic and analysis of norms (using syllogism for logical demonstration and test), and then applies its systematic interpretation of norms (a kind of interpretation that improves the standard of words) to the judicial judgment. The dogmatics of law oriented to judicature is based on the premise that legislation is not questioned. Legal dogmatism regards the effective legal norms as the premise of firm belief without doubt, and takes this as the logical starting point to carry out the systematization and interpretation work. The rule of law depends not only on fair, scientific and well-established laws, but also on neutral and impartial judges who say "what is the law" rather than "what should the law be". Of course, modern legal theory assumes that legislators and judicial officers both supervise and cooperate with each other. Judges respect the Council and effectively test the reliability and source of norms. At the same time, no justice can be produced like a vending machine, no algorithm, no well-designed expert system can replace judges with computer code and a large database. For this reason, legal dogmatism has great potential. It presents the clear provisions in the legal norms and resolves the possible ambiguity in a coherent and fair way, so that the judges can understand the purpose and significance of the law and become the "authoritative" guide in the judicial judgment. For example, there is a basic tenet in the doctrine of criminal law, that is, the criminal code is perfect, which can provide answers for all kinds of criminal cases. This conviction of criminal law norms does not necessarily lead to superstition of norms or concepts. Behind norms, there are many dimensions such as facts, norms and values, which inevitably include value judgment. It is necessary to exclude behaviors that are seemingly in line with the constitutive requirements of crime but are not illegal or responsible in essence through certain interpretation concepts and methods. This is the positive influence of legal dogmatism on justice. Criminal law contains many evaluative concepts, which can't be treated simply by foresight, judicial experience or logical analysis