In class, law students may hear an abstract and important word like " Legal Thinking " more than once. In essence, legal thinking is a tool for thinking, which includes professional thinking such as conceptual thinking, rule thinking, logical thinking, and also covers the scope of professional thinking such as critical thinking and growth thinking.
So, what is the difference between legal thinking and thinking patterns in other disciplines, and what are the differences in the fields of civil law and criminal law? How should law students shape their own legal thinking?
1. Characteristics of legal thinking
Shu Guoying China University of Political Science and Law Professor:
Compared with other disciplines, legal thinking has five major characteristics:
1. Legal thinking is practical thinking. We must apply legal norms to facts and life, and find a basis for solving problems in practice. Legal thinking is not purely cognitive or theoretical, but solves the problem of how to do when facing legal relationship , which is different from physics and mathematics. This is the uniqueness of legal thinking.
2. Legal thinking is thinking based on real law as the starting point or platform. Law is doctrine, a science that seeks answers to problems in legal life. Where should I find the answer? There must be a sequence of finding authority bases. First, you should look for it in the current real law of a country ( statutory law , customary law ) to understand how the laws stipulate. If the real law cannot be answered, or the laws conflict with each other, or the real law is an evil law, then seek help from super-real law (such as natural law ), which may also include international law and foreign law, and sometimes also seek legal principles in the doctrine of jurists.
3. Legal thinking is a problem-oriented thinking. This kind of thinking has its specificity, which is reflected in the fact that a question may have multiple answers or opinions, but there must be a trade-off in it, and finding the best opinion as the basis for solving legal problems.
4. Legal thinking is an argumentative thinking. For a question, law should give reasons. The basis for behavior must be concluded through argumentation, with reasons first rather than results first. We firmly oppose the inverted thinking method of concluding first and then giving reasons. We must use rigorous logical reasoning and use hiding technology to restore the concept to life to find the answer to the problem.
5. Legal thinking is a value-oriented thinking. There are many problems facing law, because our judgment on the relationship between things is based on different values and different opinions are drawn from different values. In this sense, legal thinking is value-oriented, but legal studies cannot fully agree that "Theory A", "Theory B", and "Everyone's Saying" are all equally reasonable. It must be found in many value disputes through argumentation or debate. Otherwise, if the Law Society falls into a dilemma of having a right to speak for the public and having a right to speak for the public, it will be difficult for it to become science.
Huang Jin Former President of China University of Political Science and Law:
The legal thinking model focuses on logical reasoning, and requires the ability to reason based on facts and restore the original facts; at the same time, as a high-quality legal person, he should also achieve an organic combination of emotion, law and reason, and oppose textism, mechanism and vulgarism.
Fuzitang Southwest University of Political Science and Law President:
Law has commonalities and differences in thinking mode with other disciplines. The difference here is reflected in three aspects: First, law emphasizes "based on consciousness". To emphasize the basis is to emphasize that every decision and behavior has its reasons. Especially as a country with a traditional legal tradition, our country has always been clear and clear in terms of legal basis. Second, law emphasizes "procedural awareness". Justice is divided into substantive justice and procedural justice. Although substantive justice is important, procedural justice cannot be neglected. In a sense, the rule of law is the rule of procedure. Third, law emphasizes "realizing justice." Justice is the eternal goal of legal professionals. Justice is a process and a result. The ultimate goal of law is to achieve the justice of the consequences.
In particular, it should be emphasized that law is a highly practical science, focusing on solving problems (mainly disputes), how to solve them, what are the results of the solution, and what kind of incentives the solution will have for the present and the future. Therefore, law is by no means a "stoppable" science. In view of this, in the teaching process, we emphasize more on cultivating students' grasp of the overall things, paying attention to the consequences, and balancing the various interests. For example, a lawsuit cannot exist in isolation. What is the relationship between it and similar cases before? What is the relationship with similar cases that will appear later? Therefore, we must refer to the past, and we must look at the future, and look at the consequences, that is, look forward.
Therefore, studying law majors cannot be limited to learning the legal provisions themselves. More importantly, we must follow the legal text and explore the logic behind the law: What is the law? Why is the law like this? To know the truth, you must know the reason. In the face of social hot topics, disputes, and difficult cases, what the legal person needs is not to grab the media headlines, but to speak half a beat slow; what he needs is not the passion to transform into Goddess of Justice , but the rationality to peel off one's own mind, from this to the other, and think from the perspective of others.
2. Civil law thinking and criminal law thinking
Chen Xingliang Professor of Peking University Law School:
If law is compared to medicine, then the civil and criminal law is equivalent to internal and external subjects, and its status is very important. The status here is important, not just that the content of the civil and criminal laws involves all aspects of social life, and the normative system is complex. If you want to fully and systematically master the professional knowledge of civil and criminal laws, it is a test for the intelligence of law students. More importantly, the civil and criminal laws laid the tone of the basic thinking methods of law. In this sense, learning criminal law is the only way to develop legal thinking methods. Therefore, in the process of criminal law learning, law students not only need to master professional knowledge of criminal law, but more importantly, they can undergo training in criminal law thinking methods through criminal law learning, so as to enter the door from outside the law.
One of the biggest characteristics of legal thinking is that the thinking process is bound by norms. Therefore, legal thinking is also called normative thinking. In a vivid way, it is dancing with shackles. The shackles of legal thinking are norms. Therefore, legal thinking cannot be wild, but rather thinks within the space provided by the norms. In this case, legal thinking will not be confused with other thinking.
Legal norms are some limitations on human behavior. In the legal context, people cannot do whatever they want and must be bound by norms. For example, the pursuit of interests is human nature, and business thinking is a thinking activity driven by profit-making purposes, which has a guiding function in the formation of motivation for business behavior. However, in a society ruled by law, commercial activities are regulated by law, as described in the following sentence: "The most profitable methods are written in the criminal law."
The evaluation of things cannot be separated from the standard of norms. In this sense, the introduction of norms is the beginning of the formation of legal thinking. For example, legal justice is different from general justice. General justice adopts substantive standards, while legal justice adopts normative standards. The two judgment standards are different, and the conclusions are different. It is in this sense that the distinction between legislative theory and judicial theory is a logical starting point for legal thinking. Legislative thinking is generally substantive thinking, while judicial thinking is normative thinking. When analyzing a specific case, legal thinking requires the adoption of normative thinking methods, and cannot exceed the current effective normative standards.
Tang Yong Associate Professor of Central University for Nationalities:
Regardless of the law, facts, and wishes of the parties, they emphasize the civil law thinking of peeling off the threads and decouples. The reasons are: conflicts such as lesions, law, medicine, law, and surgery. We cannot make a small piece of finger bleeding and suppuration, that is, amputation of the entire arm.Civil law is different from criminal law. Criminal law often ignores the cost of discovering the truth; civil law is not the case. It is originally mainly a dispute of interests, and the cost is expensive and inefficient will lead to the parties initiate a civil lawsuit, which will not be worth the cost. The entire set of civil law skills is to resolve conflicts of interest of the parties at the smallest cost possible. And this "small cost as possible" relies on not the oath of opening and closing, but on the smallest unit, "dividing a hair into ten thin threads, and then dividing..." to discover the most accurate conflict points, prescribe the right medicine, either for the referee or for mediation.
Of course, the emphasis on civil law thinking that emphasizes the detachment of threads is not rejecting overview legal thinking. When slowly enters the system of civil law, the boundary divisions of public and private law, the integration of civil and commercial or division, the compilation of Pandektun-style Civil Code , the thinking of general principles of civil law, the external and internal system, the binary system of material and debt, and even the basic thinking of claiming rights are both the result of the re-analysis of civil law, and the key points of the analysis of civil law.
3. The development of legal thinking
Liu Renshan Vice President of Central South University of Finance and Economics:
The development of sound legal personality and legal thinking habits is particularly important. Compared with the thinking patterns of other professionals, the essential characteristic of legal thinking is its "normativeness", that is, legal thinking is normative thinking. The basic mission of university legal education is to cultivate and train students' legal thinking.
Law students should become adults and talents, especially to grow into legal professional talents with legal thinking habits and legal thinking awareness. It is necessary to develop the habit of widely reading classic documents of law majors . Classic literature in law can be described as vast as a sea of smoke. If we can make full use of the golden age of memory, we can combine intensive reading and extensive reading while reading; while we can combine savoring and rumination while learning and remembering. In this way, our thoughts will gradually mature, our thinking will gradually deepen, and our consciousness will gradually become independent.
Wu Zhiwei Lecturer at Southwest University of Political Science and Law:
An excellent legal person should have professional legal thinking, master systematic legal knowledge, and be familiar with legal practice skills. None of them are missing. Just like a martial artist, a martial artist with a deep foundation of internal skills and skilled martial arts moves can be called a martial arts master; but only a master who can deeply understand the true meaning of martial arts can become a master of martial arts.
Chen Wei Professor of Southwest University of Political Science and Law:
Chen Ruihua Teacher said in the book " The way of thinking of the legal person ", " In the process of learning the law, whether it is civil law, commercial law , criminal law, administrative law , and the Constitution, there is a set of the way of thinking of the legal person in it" . As a law undergraduate, if you want to learn these legal knowledge, understand these legal provisions, and understand these legal spirits, you must naturally shape legal thinking and form a way of thinking that is the same or similar to the way of thinking contained in the existing knowledge system. Otherwise, it will be difficult for you to discover, grasp and appreciate the unique charm of the law. At the same time, as a law undergraduate student, should also establish a dialectical, objective and comprehensive legal thinking mode when thinking, analyzing and solving legal problems. should combine normative text with social experience, abstract theories with specific cases, general situations with exceptional scenarios, and appropriate ways to solve problems through repeated communication between the two. A proposition or conclusion cannot be denied due to differences in norms and experience, the differences between theory and individual cases, and the contradiction between general and special cases.
Critical thinking ability is a great tool for learning law. All the exploration of knowledge starts with asking questions and criticizing existing theories, propositions and conclusions, and the study of legal knowledge is no exception. Therefore, you should have critical thinking skills in your undergraduate study in law. So, how to cultivate critical thinking? Kaifu Lee Mr. Li’s answer is “Ask how more; ask more why more; ask more why not; communicate with others more.”, and in the unique argumentative knowledge system of law, critical thinking ability can be cultivated from the following aspects: (1) The ability to accurately find topics and conclusions; (2) The ability to quickly sort out theoretical evidence; (3) The ability to examine argument logic, that is, to gradually cultivate the ability to discover logical fallacies in the argumentation process and to explore logical skills, such as whether a specific conclusion can be drawn from the argument, whether a specific conclusion can be drawn, whether there is circular argumentation , etc.
This article is excerpted from "The First Lesson of Law", edited by Sang Lei , published by China University of Political Science and Law Press in August 2020
