Professor Sang Benqian, a famous jurist, once wrote in How Do We Recruit Doctoral Students? By the way, the article "Reflection on Legal Education" mentioned that legal education should devote itself to revealing the logic behind the law and strive to let students master the methods of thinking and exploring these logics.
Graduate students, in particular, should not only know how the law stipulates, but also know why the law stipulates so. The latter is relatively more important. Because in the real working environment, the former can be simplified to retrieval-or can be completely replaced by machines.
Legal education still emphasizes not to take legal provisions as the center of study, but to draw inferences from others, understand and learn the internal logic and principles behind legal provisions, so as to have a deeper understanding of the law. As a worker engaged in legal practice, we should adhere to the orientation of solving practical problems; Theoretically speaking, we should pay more attention to the thinking mode and method of interpreting legal provisions, and understand and apply the law from multiple angles and levels; On the basis of mastering the legislative intention and orientation behind the law, we should strive to innovate the application of the law and solve the existing problems.
However, most existing lawyers still follow the learning logic of "retrieval" in legal practice, and all stop at "law" and "law" in legal practice. Although this kind of learning logic is "the most affordable" in a short time and "more practical" than before, in the end, the understanding of the law is only "a taste".
In fact, nowadays social cases, whether criminal cases or civil cases, are extremely rare to directly incorporate the facts of the case into the existing provisions of the law, and the perfect combination of facts and the law directly leads to an indisputable verdict.
In practice, most cases are either controversial in the application of the law or divergent in the determination of the facts of the case.
For example, taking a civil execution case as an example, the author is faced with a dispute over the understanding of legal provisions.
As we all know, in civil execution, when the court facing the priority of mortgage payment is not the same court as the court of first instance, and there is a dispute over the execution of the property of the same person being executed, the Supreme People's Court of China gave an official reply to the Fujian Higher People's Court's "Request for Instructions on Solving the Conflict between the Court's Disposition of the Right of First Credit and the Creditor's Exercise of the Priority of Compensation", and the solution to this problem is: in the process of execution, the court should first seal up, detain and freeze the seized property (hereinafter referred to as seizure). However, if the creditor's rights that have entered the execution procedures of other courts have security interests and priority over the seized property (hereinafter referred to as priority creditor's rights), and it has been more than 60 days since the date of the first seizure, and the first seizure court has not issued an auction announcement for the seized property or entered the sale procedures, the priority creditor's rights execution court may request that the seized property be transferred for execution.
According to this provision, when the court giving priority to the execution of mortgage applies to the court of first instance for the transfer of the right to dispose of property, the problem lies in the dispute over the starting time of transfer and execution.
Because the seizure in the legal sense of our country includes the seizure in the litigation stage and the seizure in the execution stage, the seizure in the litigation stage automatically turns into the execution seizure. Although the Supreme Law has issued provisions to solve the problem, it has brought the problem into another deadlock. However, only understanding the literal meaning of legal provisions can not completely solve the problem. Combining the legislative intention of the Supreme Court in promulgating this provision and the principle of efficiency in implementation, it is not difficult to draw a conclusion that the initials here can be understood as seizure in the litigation stage. This is to know and understand the law and explore the logic behind the law on the basis of fully understanding the law, which is also the embodiment of legal thinking.
Imagine that with the convenience of the existing network conditions, it is no longer difficult for both senior lawyers and young inexperienced lawyers to retrieve all relevant laws and regulations under any circumstances. Then in the face of the same law that is completely searched, the judgment results of different lawyers representing cases may be overturned. This fully shows that the key to the success of lawyers lies not only in the accumulation and memory of the legal provisions themselves, but also in the ways and methods of using and understanding the legal provisions, which is exactly the value of the legal thinking put forward by the two teachers.
Second, legal thinking is an empirical thinking.
Teacher Sheng wrote in his personal motto: No legal business is a pure legal problem, and no excellent lawyer is only familiar with legal provisions and has no other skills.
We often hear that the law is nothing more than human feelings. As a lawyer, whether it is a lawsuit or a non-lawsuit case, it can't be a single individual contradiction. They always contain different themes and different interests. To properly handle these contradictions, we should not only rely on legal knowledge, but also have corresponding social experience and learn to analyze cases with empirical thinking.
Therefore, legal thinking has to be said to be an empirical thinking. However, with the help of the logical premise of empirical thinking, we must first understand what experience is. The author believes that the experience we usually talk about includes not only a person's cognition of law, social morality and public policy, but also a person's pattern, vision, ability to handle affairs, thinking and so on.
But many times, people, even legal professionals, tend to oppose law and experience, so it is a prejudice to think that legal thinking is a logic completely opposite to experience.
The author believes that it is a paradox to determine this "either-or" view on at least two levels-
First of all, when legislating, when stipulating rights, obligations, responsibilities, procedures, etc. In addition to following the legislative procedures, including the basic elements of the law, legislators also legislate from a socially acceptable angle and position. The consideration of the existing social morality, public policy, the division of interests of all subjects and the future development trend all contains a profound understanding and thinking of the existing social situation, which is the embodiment of empirical thinking, rather than being divorced from social reality and completely dominated by the logic of system design, and forcing others to do it through legislation.
Therefore, from this perspective, this universal social consideration itself is the carrier of experience, and legislators have already used the legislative thinking of experience at the beginning of legislation.
Secondly, in litigation, both in investigation and evidence collection and in the process of law application, the value of experience is reflected.
For example, in criminal cases, usually in the process of marking papers, it is found that the facts identified by oneself are beyond the reach of ordinary people, or that the suspects have contradictory confessions before and after, lacking reasonable logic, etc. , all with the help of our experience in handling cases.
In civil cases, the handling of divorce cases is the most significant embodiment of experience value. As for the distribution of specific property and children, under the premise of existing laws, the specific personal situation of the parties to the case must also be taken into account, which requires judges and lawyers to fully consider the existing family situation and their understanding and cognition of emotions.
Legal thinking is an empirical thinking, as Teacher Sheng said: Legal business is not a purely legal issue.
Third, legal thinking is critical thinking.
Zhai Jianyi, a well-known criminal defense lawyer, said at the beginning of applying for lawyer's practice training in the first phase of 20 18 that this time the focus was on the concept of criminal defense. First of all, he pointed out that the concept of innocent defense held by many criminal lawyers is incorrect (of course, Zhai Jian's lawyer did not completely deny the concept of innocent defense. For example, he also agrees that it is indisputable to plead not guilty from the aspects of finding the suspect's alibi, age of criminal responsibility and mental state. He further pointed out that the concept of criminal defense should not be innocent defense, because it is quite difficult for a criminal suspect to prove his innocence, and the task of proving the suspect's guilt is the public prosecution agency. Secondly, in the process of criminal defense, lawyers should not follow the thinking of public prosecution agencies, but must be good at finding problems and pay attention to the logic and rules of experience in marking papers.
After class, by contrast, Zhai Jian's two criminal defense concepts actually include two aspects: one is internal; One is external. Internally, when lawyers are always thinking about how to improve and pursue criminal defense skills, they must not lose their understanding of criminal defense itself, the most basic and fundamental concept of criminal defense.
Usually, criminal defense lawyers ignore the basic concept of criminal defense and focus on pursuing higher-level criminal defense skills and skills. Sometimes I can only do nothing and lack the foundation for establishment. This is a reflection on myself.
Externally speaking, finding and revealing problems in time in the process of marking papers is a query to others' behavior or some external event, and a reflection on the outside. Tracing back to the source, internal and external reflection and questioning are driven by critical thinking. The former is a criticism of itself; The latter is a criticism of others.
What is the significance of critical thinking? Under the guidance of critical thinking, we should look at the problem critically, and re-recognize and judge the research object by virtue of personal expertise and ability, so as to stimulate the motivation of individual inquiry learning and achieve the goal of being brave in innovation.
Of course, critical thinking does not dominate the whole and denies everything without thinking. Must be based on the objective understanding and treatment of practice, resulting in confusion and doubt.
Specifically, in the implementation of critical thinking with lawyers as their professional role, that is, lawyers should never take previous judgments as their own conclusions when thinking and handling cases, but should consider them from multiple angles, boldly innovate from two dimensions of logic and experience, and form their own professional confidence. Interpret the prudent and independent quality of legal persons such as practicing lawyers and cultivate critical legal thinking.