There is a legal professional group in modern society, which is called "the same subject of law" or "the same subject of legal person", including judges, prosecutors, arbitrators, lawyers, law professors, corporate legal advisers and so on. These occupations belonging to the same corporate body are very different. Lawyers are freelancers, and judges are national civil servants in charge of trials. Why are they classified as "the same legal system"? There are two similarities: first, they share the same responsibility: practicing and maintaining the rule of law. They are both practitioners and defenders of the rule of law; Second, the same way of thinking, that is, legal thinking. Judges judge cases, lawyers represent cases, and law professors analyze cases, using the same thinking mode, that is, the legal thinking mode. Legal thinking is a way of thinking different from other professionals. What are the characteristics of legal thinking? We can see that the whole process of legal thinking of judges, lawyers, prosecutors, arbitrators or law professors is closely related to legal norms. This is different from the thinking mode of other professionals.
How to be a good legal person? Divided into two aspects: personality and rationality. Let me talk about the personality of a legal person first: first, there must be honesty, integrity and dignity. 20 13 Graduation Speech by the President of Law University: Be a dignified legal person! On July 30th, when it comes to the integrity of judges and courts, we should not just follow the trend and see what will happen. Should not, in front of the superior leadership, condescending, bowing, groveling in front of the lower level (ordinary people), domineering. Second, we should advocate freedom, equality, fraternity, treat people equally, sympathize with the weak, have compassion, compassion and a sense of justice. Third, we must believe in the law and the rule of law, so that we can take the law as our profession, implement the law and practice the rule of law. If you don't believe in the law and the rule of law, but engage in the legal profession, it will inevitably cause great harm to the law and the rule of law, and will eventually destroy yourself and cause great harm to your loved ones. There are many such examples. Finally, be extra diligent and rigorous. In modern society, legal person is the most diligent and rigorous group. We know that famous lawyers at home and abroad charge by the time. Procrastination, laziness, no progress, muddling along, can't be a legal person, at least not an excellent legal person. So-so, careless, as an agent ad litem, he made procedural mistakes, misquoted articles, omitted evidence and forgot to defend, which led to undue losses and caused huge losses to the client, and he must also bear the responsibility for it. It is important to pay special attention to that from the first day of entering law school, we should pay attention to the personality cultivation of legal persons, strictly demand ourselves according to the personality standards of legal persons, strengthen personality cultivation and cultivate ourselves with the noble personality of legal persons.
Let's talk about the rationality of legal person first. Through the study of law school, we can lay a solid foundation of legal knowledge for the future legal profession, master the legal thinking mode and various methods of legal practice (judgment method, research method and writing method), accumulate rich social life experience and legal practice experience, and increase legal wisdom.
Second, the method of learning law
(A) the standardization of laws and learning methods
Law is the code of conduct in social life, and norm is the attribute of law (strictly speaking, this so-called law refers to written law). This is obvious. Therefore, jurisprudence with law as the research object is also normative. Law generally does not directly study social phenomena, social life and social relations, but directly studies "law". Because the research object is normative, so is the law. Do you think that scholars should first ask "whether it is legal" when discussing and thinking about problems, and "whether it is efficient" when discussing and thinking about problems with economists? This is completely different. This is the standardization of law and jurisprudence.
Every legal norm can be decomposed into constituent elements, scope of application, legal effect and other elements. This is the normative composition of the law. For example, Article 49 of the well-known Consumer Law stipulates that if an operator commits fraud, he can be sentenced to double indemnity. This is a legal rule, from the normative analysis: its scope of application-consumer contract, that is, the contract between consumers and operators; Its constituent elements-fraud; Its legal effect-double indemnity. Therefore, legal research must start with standardization. The difference between legal thinking and other thinking such as economics lies in standardization.
Since the purpose of entering law school is to master legal thinking, which belongs to normative thinking, we should start with the standardization of law instead of relying on rote learning. Instead of memorizing the words and phrases of every system and provision, we should master the normative composition of every system and provision. Only by understanding and mastering the scope of application, constitutive requirements and legal effect of each system and norm can we truly understand and master this legal system and norm.
(B) the sociality of law and learning methods
Law takes human social life, social phenomena and social relations as the normative objects. Such as the criminal law, which stipulates the sanctions for criminal acts; Civil law, adjusting the property relationship and identity relationship between people; Economic law, regulating and managing social and economic life; Administrative law regulates the operation and control of state administrative power. In short, law is the norm of social life, which makes law social. The sociality of law also determines the scientific nature of studying law, that is, jurisprudence and jurisprudence are also social, so they belong to social science. This is of great significance to legal research.
Learning law requires "independent thinking and independent judgment". "Independence" means not being superstitious about books, teachers and authority; Only through your own thinking can you become your own knowledge, and you can't rely on rote memorization. "Thinking" means not blindly believing, but doing an analysis and investigation by yourself. For Zhang San's point of view, we should first "think": whether his reasons are sufficient, convincing and self-explanatory. Secondly, we should "think": Is there any deep-seated reason why Zhang San holds this view? Is it related to historical conditions, background of the times, Zhang San's social status, education and mentoring relationship? Still have to "think about it": On what occasion did Zhang San express this view? Is it an interpretation of the existing law (hermeneutics) or a suggestion to amend the law (legislation) in the future? Wait a minute.
Due to the differences in social status, economic status and even age and gender, his theoretical views were affected. For example, the debate about "compensation for divorce fault damage" and "a white bump" can be taken as an example. When the Marriage Law was revised in that year, in the debate about whether to stipulate fault damages in divorce, most of the people who opposed the stipulation of fault damages were men, while most of them were women who were in favor of the stipulation of fault damages. In the debate about "bumping into a white car", most people who are in favor of "bumping into a white car" are young and middle-aged, belonging to the white-collar class, and most of them have cars or are about to buy cars, while most people who are opposed to "bumping into a white car" are elderly or blue-collar, and most of them have no cars or can't afford them.
On the basis of independent thinking, further make your own judgment: agree or disagree, and agree with what point of view. This is "independent judgment" based on "independent thinking". The key to "independent thinking and independent judgment" lies in "independent judgment". The key to "independent judgment" lies in: what is the standard of judgment? Generally speaking, there are two kinds of "knowledge" as a criterion: one is "basic principles", including but not limited to the basic principles of law; The other is "social life experience", which is usually called "common sense, common sense, common sense".
Taking "basic principles" as the criterion, most academic debates are like this, which stems from the scientific nature of jurisprudence. Because every discipline has its basic principles, those that conform to it are often correct, and those that violate it are often wrong. Therefore, the basic principle can be used as a criterion. Taking "social life experience" as the criterion is due to the sociality of law. Because, since the law is a social norm, it should be consistent with the life experience of ordinary people in society. Legal disputes and right and wrong can be judged by "social life experience", which I summed up according to my own and predecessors' academic experience.
(C) the logic of law and learning methods
The standardization and logicality of law are mutual. The standardization of law inevitably requires the logic of law. When making laws or codes, we should arrange all kinds of legal rules in a certain order. What is the standard of this arrangement order? It is not and should not be based on so-called "importance", but only on "logic". Because the so-called "importance" is a subjective value judgment. Whether a system is important or not will vary from person to person, from time to time and from place to place. For example, according to the order of contract establishment, entry into force, performance, change and liability, which is more important, the establishment, entry into force and liability for breach of contract? It's hard to judge and agree.
When formulating a civil code, which system is arranged on the civil code, which system is arranged outside the civil code, which system is in front and which system is behind, and the importance cannot be used as the standard, only logic can be used as the standard. This logic is "general" and "special", "* * *" and "personality". The civil code stipulates the same system and the basic system of civil life; Special rules and systems for special relations, special fields and special markets are stipulated outside the Civil Code.
The arrangement order in the Civil Code is also based on logic: the "general" and "* * *" systems come first, and the "special" and "individual" systems come last. This makes the code form the structure of "general rules" (* * * the same rules) and specific rules (special rules). First of all, the civil code is divided into "general provisions" and "specific provisions" (property rights, creditor's rights, relatives and inheritance as specific provisions); Secondly, the law of creditor's rights is divided into "general principles of creditor's rights" and "sub-rules of creditor's rights" (contract, tort, unjust enrichment and negotiorum gestio); Secondly, contract law is also divided into "general contract" and "sub-contract" (sales contract, lease contract, etc. Are specific provisions); Finally, sales contracts are divided into "general principles of sales" and "specific rules of sales" (special sales are specific rules).
In particular, it should be noted that this logical relationship between "general" and "special" and "general" and "concrete" is also the basic logical relationship of law application and the basic principle of "special law takes precedence" (Article 123 of the Contract Law). The logic of making laws is from "general" to "special". The more general rules come first, the more special rules come last. The logic of applying the law is just the opposite. From "special" to "general", the more special rules apply first, and the more general rules apply later.
The legal logical relationship is very important. Without this logical relationship, the logic is chaotic and fragmented, and judges cannot apply the law correctly. He doesn't know which rule to apply correctly, and he will be at a loss and unable to make a judgment. This, of course, refers to an impartial judge. On the other hand, an unjust judge, a judge influenced by extra-legal factors, can judge whatever he wants. Since several articles are related to this case, there is no strict logical relationship between them. If he applies any of them, you can't blame him or criticize him, which will legitimize some abnormal judgments. It can be seen that the logic of law can ensure the correct application of law, and the lack of legal logic not only affects the correct application of law, but also encourages judicial corruption.
Law has strict logic, which can not only ensure the correct application of law, but also increase the flexibility of law. When accepting a case that is not stipulated in the current law, a judge may make a judgment by applying general rules.
(D) the concept of law and learning methods
Law is a system of rules and a system of concepts. Scope of application, constitutive requirements and legal effect are all expressed through legal concepts. Therefore, to correctly grasp the legal norms, we must first correctly grasp these legal concepts. Article 49 of the aforementioned Consumer Law: If an operator commits fraud, double indemnity. From the normative analysis: its scope of application is expressed by concepts such as "consumer", "operator", "contract" and "consumer contract"; Its constituent elements are expressed by the concepts of "fraud", "behavior" and "fraudulent behavior"; Its legal effect is expressed by the concepts of "compensation", "damages" and "punitive damages". Therefore, in order to correctly understand and master Article 49 of the Consumer Law, we must first correctly understand and master legal concepts such as "consumer", "operator", "fraud" and "compensation".
Therefore, a complete and accurate grasp of the legal concept system is the basic condition for correct legal thinking. It can be said that the legal thinking of a legal person is to think with legal concepts. We study in law school. What do we study? In short, it is to learn the system of legal concepts, and then use various legal concepts for legal thinking on this basis.
Concept is an invention of human beings, expressed in words and a tool of scientific thinking. Therefore, concept is the basis of understanding and interpreting law. To understand and explain any legal provisions, we should first start with the legal concepts adopted in the provisions. This concept has its connotation and extension. The concept has its fuzzy boundary, that is, the concept is fuzzy. This determines that literal interpretation may lead to a variety of interpretation results. When two or more interpretation results are obtained by literal interpretation, other interpretation methods need to be further adopted.
The method of studying law lies in mastering a complete concept system. Law is a system of concepts, principles, systems and theories, and its foundation is a group of concepts with strict logical relations. If you master this concept, you will master the framework of legal thinking. Experience shows that if judges make mistakes in judging, lawyers in handling cases and scholars in analyzing cases, it often comes from not mastering this concept system or confusing concepts. Therefore, studying law first emphasizes the conceptual system of memory. However, legal concepts have their special meanings and logical relationships with each other, so we can't just memorize them, and we should emphasize the understanding of the concepts while remembering them. Beginners, in particular, must focus on memory and understanding, reading, memorizing, understanding and using, enhancing memory on the premise of understanding and deepening understanding on the basis of memory.
When studying law, we must pay attention to reading methods. There are three ways to read: First, intensive reading aims at mastering the conceptual system. Every law discipline has a set of legal concept system. When you begin to learn a legal subject, you should choose a good textbook with complete, accurate and concise concept system, and keep this concept system in mind through repeated intensive reading. The so-called solid foundation means that you have mastered this conceptual system completely and accurately. It should be noted that the works of each subject can be divided into three categories: teaching materials, systematic books and special studies. Second, extensive reading aims to deepen the professional foundation and acquire extensive knowledge. On the basis of intensive reading of one or two good textbooks and a relatively complete and accurate grasp of the subject concept system, I will select some special research papers and works to supplement and improve my concept system, deepen my professional foundation and broaden my horizons. Third, learning, the purpose is to master research methods and cultivate research ability. It will get twice the result with half the effort to study the relevant chapters of the system book in combination with specific problems. On the other hand, before mastering the conceptual system, it is bound to get twice the result with half the effort to read through books with large systems, forgetting the front in the middle and the middle in the back.
Legal concept is a tool of legal thinking. Judges and lawyers use legal concepts such as property rights, creditor's rights, legal acts, rights and obligations to think, analyze and adjudicate cases. Taking the case of liquidated damages in marriage as an example, the judge used legal concepts such as "contract", "marriage" and "legal act" and correctly analyzed the logical relationship between these legal concepts. Legal act is the upper concept, while contract and marriage are the lower concepts. When the legal rules belonging to the lower concept are not applicable, the case is correctly judged by using the legal rules of the "legal act" of the upper concept.
(five) the purpose of the law and learning methods
As a rule of conduct, laws are formulated by the legislature, which exercises legislative power on behalf of the people and formulates various laws. Every rule of law has its purpose. Therefore, to learn and understand the law, we need to understand the purpose of each legal rule. German scholar Huning published The Purpose Law, criticizing the concept law for playing the concept game and forgetting the purpose of the law. Jelling compared the purpose of law to the North Star, guiding the ship in the vast sea. We study, interpret and apply the law, just like sailing a ship in the vast sea. As long as we master the purpose of the law, we will not lose our way.
The significance of legal purpose in learning methods lies in that when we study every legal system and rule, we should not only understand and master the constituent elements, scope of application and legal effect of every legal norm, but also correctly understand and explain the concepts used and accurately grasp the purpose of this legal rule and legal system. We must be clear: what is the purpose of legislators to set up this legal norm? When explaining and studying every norm and system, we must not forget its purpose. Mr Wang Zejian said that any law has its purpose. When interpreting the law, we must think: Why did the legislator set this clause, and what was its purpose? It can be seen that mastering the purpose of each norm and system is the key to learning, researching, explaining and applying this norm and system.
Because of the purpose of law, the interpretation method has a purpose. The so-called purpose interpretation method means that judges can use the legislative purpose of legal provisions as the basis for interpretation when interpreting legal provisions. When using literal interpretation and other interpretation methods, it is difficult to judge which one is correct, and it is difficult to determine which one is correct. The one that best meets the legislative purpose should be adopted. That is, when there are different understandings and interpretations, we should take the purpose of norms and systems as the criterion.
(six) the justice of law and learning methods
The so-called legal justice means that the law itself must conform to social justice. This is the fundamental difference between law and technical rules and other rules of conduct. Just as people have "good and evil", law also has "good and evil", which are called "good law" and "evil law" Laws that conform to "social justice" are "good laws" and those that violate "social justice" are "evil laws". There have been many "evil laws" in history, such as stipulating that thieves should be beheaded, adultery should be stoned to death in public, tramps should be whipped, imprisoned or even executed, and homosexuals should be punished, which have been abolished one after another with the progress of society. The Measures for the Detention and Repatriation of Urban Vagrants and Beggars, the Regulations on the Management of Urban House Demolition and the "Pedestrian Collision in Violation of Rules" stipulated by some local governments are all "draconian laws".
When we study law, we should not only grasp the constitutive requirements, scope of application and legal effect of various legal systems and correctly grasp their legislative purposes, but also further evaluate and criticize them with the standard of "justice". For "evil laws" and laws that violate social justice, it is necessary to explain them to avoid their application. At least, don't defend the "bad law", don't create so-called "reasons" and "reasons", and insist that "bad law" is "good law". When you study in law school or engage in the legal profession after graduation, you must not forget the justice of the law. Maintaining social justice is the sacred duty of every legal person!
The justice of the law will ultimately be reflected through the judgment of the court. Social justice embodied in laws and regulations is rational justice; Justice achieved through court decisions is practical justice and realistic justice. Therefore, judges and lawyers have a sacred duty to practice legal justice. When judging a case, we should not only consider whether the judgment is based on the law, but also consider whether the judgment result conforms to social justice, that is, the appropriateness of the judgment result. Only the judgment that conforms to social justice is the correct judgment.
Social justice can be divided into formal justice and substantive justice. Formal justice focuses on procedural justice. As long as the applicable procedural rules are fair, it is irrelevant whether justice has been achieved between the parties in a specific case. Substantive justice is not satisfied with procedural justice, but focuses on realizing justice between the parties in specific cases. Modern legal thought emphasizes the unity of formal justice and substantive justice. Formal justice is only a means, while substantive justice is the purpose. Formal justice must be subordinate to substantive justice and ultimately ensure the realization of substantive justice.
Because law is just, it determines that law is different from natural science and engineering technology in social science, so it is called "the art of goodness (justice)". Only by truly mastering this set of "good art (practical justice)" can you be called an excellent legal person. The following are two questions raised by the judge, explaining that law is "the art of goodness (practical justice)".
When a person chooses law as his career, you choose "fairness and justice"! I chose democracy, freedom, equality, fraternity, fairness and justice as the value goals of my behavior and life! You should have a sense of justice and a view of right and wrong! If you are still a student, you are also weak and have no power to uphold justice for the people, but at least you must have the ability to judge right and wrong, justice and injustice! If you are a judge, you should categorically reject the interference of extra-legal factors, so that every judgment you make is reasonable and legal, so that fairness and justice can be achieved between the parties!
Legal person takes practicing the rule of law as his profession. This is by no means an ordinary occupation, not just to make money for a living. So it is not an operator (businessman). The sanctity of the legal profession lies in: upholding law and justice! You see, western judges are regarded as the embodiment of justice by the people, just as clergy are regarded as the representatives of God! Legal person can't be a revolutionary, but legal person is the defender of social justice! You are a graduate of law school. No matter what career you are engaged in in in the future, no matter whether you are the upper or middle class of society, you can't forget the justice of the law. Law is the art of practicing justice. Don't forget those people who live at the bottom of society and suffer misfortune.
Third, correctly understand and treat the writing of legal papers.
(a) Chinese ability is the most important quality of a legal person. This so-called language ability does not refer to the writing ability of poetry, prose, novels and other styles. Refers to the writing ability of legal style (legal papers and legal style). All legal persons in China think in Chinese, and mastering Chinese is the basic condition for smooth legal thinking. All high-level and capable legal persons, whether judges or lawyers, have strong Chinese language skills (spoken and written). When the judge directs the trial and the lawyer pleads in court, the words used should be accurate, orderly and logical, and the written judgment and pleads should be accurate, logical and convincing. Poor Chinese ability, mixed language, vague words, lack of organization and confusion of logic make it impossible to become an excellent legal person.
(2) Writing of legal style and writing of legal papers. Requirements for legal papers: accurate writing, strict logic and persuasiveness. This is also the requirement of all legal forms, such as contracts, indictments, pleadings, pleadings, judgments and awards. Therefore, the writing ability of legal papers is strong, and the writing ability of legal style is strong. In the study of law school, through the writing of legal papers (subject papers, academic papers, graduation papers), we can cultivate and improve the legal style writing ability of undergraduate and graduate students, and cultivate and improve their Chinese ability.
Here is simply to say "the words are accurate". The ancients had a story about "scrutiny". Jia Dao recited a poem: Birds perched on trees by the pool, and monks knocked at the door under the moon. Use "knock" or "push"? Toss and turn, make up our minds, hit his horse's head, instead of punishment, he might as well discuss it with * * *. There is a similar story in legal writing. "Knock" or "pry"? "Knocking on the door" means that two people know each other, and the woman opens the door for the man, but it is adultery; "Breaking and entering" means that the violent act against the woman's will is rape and may be sentenced to death. In today's civil trial practice, there are similar cases, such as "5,000 yuan in arrears", whether it is "5,000 yuan in arrears" or "5,000 yuan in arrears". "All payment has been settled" means that all payment has been settled and paid, or just "settled but unpaid"?
It shows that legal style writing requires accuracy, and improper use of words may lead to unjust, false and wrong cases. This is different from literary writing. Improper use of function words in literary writing will not cause unjust, false and wrong cases, and the author may deliberately use polysemous words to pursue ambiguity and ambiguous effects. Legal stylistic writing especially requires accurate words and avoids ambiguity. This should be trained by writing legal papers.
(3) Legal person's argumentation ability and legal paper writing. The profession of legal person especially needs argumentation ability (oral argumentation, written argumentation). You see the agents of both parties in the civil trial debate are in court, and the defenders and prosecutors in the criminal trial debate are in court. If one party claims breach of contract, it shall be liable for compensation; if the other party claims non-breach, it shall not be liable for compensation. The prosecutor said that it constituted a crime, and the defender argued that it did not constitute a crime. The two sides are coming and going, tit for tat and swearing at each other. When a judge hears a lawsuit, it depends on which side is right, and the debate is logical and convincing. Defense, court debate, of course, ultimately depends on the evidence. We often say that we can speak with evidence, but the evidence itself can't speak. But when the court cross-examines, the two sides of the case, the defender and the prosecutor, and the agent of the original defendant, speak for the evidence (debate the legality, authenticity, relevance, content and significance of the evidence). If the defense lawyer's Chinese ability is poor, his speech is ambiguous, his logic is unclear, his words are incoherent and his words are improper, even if the evidence is sufficient, he may not win the case. The real purpose of court debate is to convince the judge. Only clear thinking, accurate wording, strong organization and strict logic can convince people and convince judges. A legal person must have high debating ability and master the art of debating and persuading. In addition to the training of mock trial, law schools mainly rely on the writing of legal papers to train and cultivate students' argumentative ability.
The purpose of our study in law school is to cultivate ourselves into excellent legal persons. Some people mistakenly think that as long as they learn more than a dozen courses well, pass all the exams and get excellent grades, they can become excellent legal persons. I want to tell my classmates that this understanding is incorrect. It is of course very important to study hard in various courses, master the conceptual systems of various legal disciplines and lay a solid foundation of legal knowledge. This is just one of the qualities that a legal person should possess. More importantly, he can use the basic knowledge of law for legal thinking and legal practice, which requires considerable language ability.
We mainly pass Chinese classes and compositions (mainly literary writing) in primary and secondary schools. No matter what the Chinese scores in the college entrance examination are, we all lack the Chinese ability of legal person and legal style. Therefore, we should pay attention to the writing of papers in various subjects of law school, academic papers, especially graduation papers. Unfortunately, not all law students are aware of the importance of thesis writing. Some students do not attach importance to thesis writing and adopt a perfunctory attitude. They even found two papers with the same or similar topics from the Internet, cut and spliced them, and handled them well, just asking the teacher to give them a passing grade. These students graduated from law school for four years, but their language ability has not been cultivated and improved. Even if they do well in exams in all subjects, even if they really master the basic knowledge of law in all subjects, they can't become excellent legal persons. It should be noted that, in the future, you can't download and splice the complaint and defense from the Internet like a lawyer, the judge writes the closing report and judgment, the arbitrator writes the award, and the corporate legal adviser drafts the contract. Therefore, we must attach importance to the writing of legal papers during our study in law school, and consciously train and improve the writing ability of legal style according to the writing methods of legal papers.
Fourth, let yourself.
Clear learning objectives. Clarify the quality, personality quality and knowledge and ability quality that the plaintiff's excellent legal person should have. Master learning methods. Active, planned and step-by-step learning. Through active, planned and step-by-step study and training, I can become an excellent legal person.