Preface
No matter what we open any legal book written by Chinese scholars in recent years, the introduction of "the essence of law" is the same, nothing more than Western views on law, such as divine theory, justice theory, rationalism, cybernetics and socialism; ancient Chinese views on law, and Marxist views on law.
After listing these previous views on the "essence of Dharma", can we understand the "essence of Dharma"? On the contrary, on the issue of "the essence of law", like the peasant who wanders in front of the door of "fa", we will never be able to enter the door of "fa". The reason for this situation is that there are problems with the way we propose the essence of law.
The essence of law is to say "what is law". The first question of jurisprudence itself is included in the discourse of modernity. The discipline of legal philosophy pioneered by Leibniz "New Methods of Legal Research and Lecture" to Hegel "Research on Legal Philosophy", is essentially in the grand narrative of Western rationality Enlightenment Thoughts and German classical philosophy.
Hegel
Therefore, the legal philosophy pioneered in this tradition. As early as its birth, it contained a huge ontological crisis, and this crisis has not been resolved to this day, so that as the German jurist Kaufmann said in the postscript of "Postmodern Law Philosophy ": "A worrying question is whether contemporary philosophy and legal philosophy will once again be exhausted by formal thought games. And thus self-denial again. Just as they shamefully deny themselves in modern and modern history." Therefore, our modern legal philosophy always makes the answers when dealing with the first question of "the essence of law", which is the first question of "the essence of law", so that our understanding of "the essence of law" always hovers in front of the door of "law".
In order to solve the crisis of modern jurisprudence, this article will first "deconstruct" the legal philosophy theory under the present discourse to show its false nature. Secondly, "reduce" the "essence of law" so that "fa" can be separated from the various "essences" imposed on it by modern discourse, so that "fa" can be manifested as itself. Finally, after "restore" "law", the hermeneutic method is used to place law in the context of the current era, and the essence of "law" is openly positioned.
1. Generation conditions for enlightenment, modernity and jurisprudence
1. Enlightenment and modernity
0 Enlightenment refers to the silk cultural process that appeared in European literature and art to replace God's authority with man as the scale of all things, and to replace faith with human reason, and to replace theology with philosophy. This process has gradually made people realize their subjective status and freedom after being strongly promoted by the French Revolution in the 17th and 18th centuries, the Enlightenment movement and the 19th century national classical philosophy . And its own maturity, as Kant pointed out in , enlightenment is to get rid of the immaturity state that oneself is added to oneself, and this immaturity state refers to the human dependence on external authority (God, God). Use your own reason and freedom to understand and act. And when a person truly realizes his or her dominant position in this world, his or her rational ability and freedom state, and is responsible for his or her actions, he or she truly matures.
In the historical process of enlightenment, society, that is, the secular world, appeared, which is different from the world dominated by God in the age of theocracy. Dominant by people with "subjects" and created by science, technology, economic, political and social plans. As a product of human will to power, it is born from the strange combination of reason and utopia . The secular world is dominated by reason, which is a world in which a person is responsible for himself.
Enlightenment can achieve human liberation and free secular world through science and reason, and replace the other heavenly kingdom promised by Christianity to mankind. Whether it is the " Social Contract Theory of " by Rousseau , or the human rights theories of enlightenment thinkers such as Voltaire , Diderot , Locke , all of them are narrating a grand narrative, that is, how the "people" as the subject achieves public opinions through contracts and realizes the desire for equality and freedom of people through "democracy". Enlightenment discovered the "people" concealed by God's light, and "people" have a priori cognitive ability and can achieve their own liberation through reason and science. And establish a democratic, free and equal ideal society in the secular world.
Since the Renaissance, the development of humanistic thought has made rationality, science, freedom and democracy the driving force for secular social happiness that people pursue under the strong promotion of the French revolution, Enlightenment and the classical philosophy. Therefore, rational thought, subjective consciousness, and the concept of freedom and equality constitute the basic characteristics of modernity. We can say that "modernity" is the product of the knowledge of Enlightenment thought about "subjective people". Whether it is the study of science, politics, morality, religion and art, it is "legalized" into "science" in the grand narrative of modern discourse. All knowledge-based cognition that does not conform to modern discourse is expelled from the door of truth. The trinity of transcendental reason, speculative philosophy and modern science constitutes the foundation of the knowledge paradigm of modern discourse. Incorporate everything into the metaphysical self-evident truth. The jurisprudence and its basic concepts that emerged almost simultaneously with the formation of modern discourse include the basic spirit of modern discourse, but also participate in the formation and construction of modern discourse.
2. Modern discourse and the emergence of jurisprudence
"Legal philosophy originated from modern German philosophy,... The 17th century philosopher Leibniz used the concept of 'legal philosophy' for the first time. Later, legal philosophy was used by Kant and Hegel's national philosophers as a term summarizing the 'philosophical department with law as the content'. The publication of Hegel's masterpiece "Principles of Legal Philosophy" made the concept of 'legal philosophy' widely spread to Western countries and used by scholars from all countries."
The emergence of legal philosophy is synchronized with the establishment of the rationality and subjectivity of modernity, the formation of the concept of freedom, and the discovery of the secular world. In this process, French Enlightenment thinkers Montesquieu and Rousseau, German classical philosophers Kant and Hegel played a major role in the formation of the basic concept of jurisprudence.
France Montesquieu's "The Spirit of the Law" is based on the Enlightenment concepts of freedom and equality, and directly inherits the rationalist spirit of Descartes . He believes that law is an inevitable relationship arising from the nature of things. In this definition, the rational spirit of objectivism is clearly contained. In his theory, law has become almost a science. Freedom and decentralization are his major theoretical contributions. It reflects his subjective idea of respecting individual rights and coordinating the rights between individuals. Compared with him, Rousseau's "H Social Contract Theory" is more radical in Enlightenment. From the origin of the country, he put forward the view that "no matter who he is, he cannot become the law if he issues commanders without authorization." Rousseau's theory has a strong sense of freedom and equality, which is related to his admiration for "nature". According to his "natural state theory", we will inevitably conclude that man is born free and equal. He believed that there was no freedom without law, nor was there anyone above the law, a free people who obeyed but were not enslaved, had a leader but no master, obeyed the law but only obeyed the law. His classic theory laid a solid foundation for the modern concept of jurisprudence. In essence, it expresses his concept of "social contract". The rights of every transferee should be guaranteed equally, and no one can surpass it. French Enlightenment thinkers proposed a series of basic concepts and principles for the emergence of jurisprudence.Their legitimization of "law" originated from the free, equal and progressive human liberation meta-narrative.
Montesquieu
Compared with Montesquieu and Rousseau's French radical theory of popular sovereignty and separation of powers, Kant abstracted and philosophized the essential issues of law. He put forward three principles on "absolute command", namely:
1. Act according to the principle that you can be willing to be the universal law
2. Act like this, whether for yourself or others, in any case, regard people as an end, and never as a tool.
3. The will of every rational being is regarded as the legislative will.
From the three principles of "absolute command", Kant proposed the conclusion that "law is the sum of the coordination between the will of each individual based on the universal law of freedom and the will of others. Kant abstracted moral self-discipline, while law is the entity of this abstract morality. In his theory, he inherited the idea of French Enlightenment thinkers respecting reason and respecting individuals, not only recognizes human freedom, but also incorporates it into the free relationship with others. In essence, it is a pair of the rights of the "people" as the subject. Hegel's legal theory regards law as the unity of objective spirit and human free will, and emphasizes that it not only emphasizes The freedom of the individual's spiritual will, that is, the special freedom of will, incorporates it into the universal pure will, thus making it a single will that transcends the two. His legal philosophy system is precise and complete, including abstract law, morality and ethics, forming a huge system, making epoch-making contributions to the emergence of jurisprudence, but it draws a boundary between essentialism and rationalism for people's understanding of "law".
2. Various metaphysical views on the essence of "law" and its restoration
" legal philosophy (philosophy) of legal philosophy refers to both a system of thought and an academic field. "As the most abstract component of the legal system, legal philosophy is a general theory of legal science. Basic theory and methodology. ”⑴ The ontology of jurisprudence studied in this article is the essence of "fa", "what is law". Therefore, it is necessary to make the following brief review of the various answers to the nature of "fa" and "what is law" since the emergence of jurisprudence. On this basis, analyze and evaluate it. Reveal its own shortcomings and limitations. As well as the obscuration of the understanding of "fa". On this basis, the various types of return to the essence of "fa" formed under the discourse of modern nature are separated. The essence of "fa" is restored. Then, the transformation from the modern metaphysics of "fa" to how "fa" exists, means that "fa" is the reality that it is The way of existence is revealed.
1. The various metaphysical view of the essence of "law"
(I), natural law school of science defines and understands the essence of law
natural law has existed since ancient times. What this article discusses is modern natural law, that is, classical natural law. The theoretical basis of classical natural law is the theory of natural state and state contract theory based on rationalism, as well as the theory of natural human rights.
Montesquieu believes: "In the broadest sense, law is the inevitable relationship generated by the nature of things. In this sense, all existences have their law. ”⑵ This is what he called natural law. And its "a occasion that dominates all people on the earth is human rationality. The political laws and civil laws and regulations of each country apply this human rationality to individual situations. "Rousseau divided law into natural law and recognition law, and understood the recognition law as the provisions and constraints of the will of all people (public will) on all people themselves. Public will is the common will of all people, and sovereignty is the highest manifestation of public will, always taking public interests as the rules, and the essence of law is nothing more than public will exercise sovereignty over all people.
The natural law was once revived in the 20th century, so it was also called the revival of natural law, and it was divided into two factions: sacred and secular. Fuller believes that law is the cause of making human behavior obey rule governance. His definition is essentially the product of compromise between natural law and positivism . However, he still emphasizes the role of morality on law.Although Rawls and Dworkin do not clearly define law, they both emphasize the relationship between law and morality, justice, principles and the protection of individual rights. In essence, it is the specific aspects of the understanding of modern natural law. Maritan adheres to the theological theory of nature and inherits Aquinas' division of eternal law, natural law and real law. Although it emphasizes humanitarian factors, it ultimately attributes law to God's will.
(II) Analytical School of Knowledge and Understanding of the Essence of Law
The founder of the Analytical School of Law was John Austin. He was deeply influenced by the positivism of Conde and Bentham's utilitarianism at that time. Therefore, he believed that law is substantive law. "Soterritorial", "orders", and "sanctions" form the entity structure of the law, and law is the order of the sovereign, and sanctions are the conditions to ensure that this order is implemented and implemented.
Analytical jurisprudence became an analytical empirical jurisprudence represented by Kelson and Hart in the 20th century. Kelson's legal theory is also called pure jurisprudence. He strives to reveal the essence of law, believing that the moral criticism or defense of law has nothing to do with objective science, so he cuts the connection between law and morality and other social relations. The essence of law he derived is: the mandatory normative order of human behavior. That is, to respond to events that are considered harmful to society and are undesirable, especially to such behaviors as coercive behavior. Hart believes that law is composed of a combination of rules that define obligations, rules that grant rights and rules that recognize rights. He regards the essence of law as a rule.
(III) The understanding and understanding of the essence of law in the sociological law school
Natural law focuses on the rightness of research law, analyzing law focuses on the reality of research law, while sociological law, influenced by Confucius' positivism and sociological thoughts, completely abandons the transcendentalism of natural law and emphasizes contingency and subjectivity. The study of law adopts sociological methods such as utilitarian and structuralist.
Representative figures of sociology and law Pound believes that law is a highly specialized form of social control in developed politically organized society - that is, social control achieved through systematic and orderly use of such social violence. Law is a system, the system we call order.
Selzny has the greatest influence in sociology and law, due to the influence of classical law sociological theory. Therefore, unlike positivist social jurists such as Pound, he combined legal phenomena with value judgments and concluded that law is the exercise of formal and clear rules or norms formulated by authority. The methods are divided into three types: suppression method, autonomous method and responsive method.
Looking at sociology and law, whether it is the determination of objective principles before World War II, or the argument that concretely uses empirical and empirical methods after World War II. They all emphasize to varying degrees that the understanding of law is incorporated into social interests and social effects, and based on social facts, the operation of social power and the satisfaction of social needs are regarded as the purpose and requirements of law.
(IV) Other more influential legal schools have an understanding of law
The existentialist philosophy, which emphasizes the legal significance of individual existence and freedom, is essentially to regard law as a means of recognition of the value of the dignity of individual existence and protection of it. The freedom of individual existence is the purpose of the law, and realizing justice is the highest value of the law.
The representative figures of neoliberalism are Hayek and Nosyk. Their theories all link law with individual freedom, justice and order. Their essence is to emphasize the guarantee and realization of individual rights (freedom) by law.
Behavioralism jurisprudence comes from empirical positivism, structural functionalism and American legal realism. It uses theories and methods of general behavioral science to study the behavior of state applicable laws, especially judicial behavior.It is believed that law is a kind of behavior, a normative behavior of the law enforcement subject and the legal subject, that is, the act of the state applying the law (here "law" is used as the "normal" meaning), and is limited to legal behaviors that people can observe, measure and analyze (i.e., legal behaviors that are "real" rather than "should be"). Behavioral law is to study legal behaviors in this sense.
Western Marxist jurisprudence originated from the Western Marxist theory of Gramsci , Kirchheimer and Habermas of the Frankfurt School. They discussed law in their relationship with state, politics, class and ideology, either attach importance to criticism of the bourgeoisie, or point out the crisis of legitimacy, and shifted from "economic determinism" to a broader social relationship and cultural construction.
2. The non-metaphysical essence of "law" restores
Modernity is the product of enlightenment, and its corresponding historical period mainly refers to the 18th and 19th centuries. Leota pointed out that modernity is "a way of thinking, a way of expression, a way of feeling." Modernity is dominated by the idea of "liberation" of enlightenment, and its essence lies in what Kant calls "universal human historical conception", that is, all human history tends to an ultimate goal, that is, to achieve a universal kingdom of freedom. Under the idea of "liberation", three grand narratives have emerged:
1. Through reason and science, the enlightenment narrative liberates people from the state of ignorance and ignorance.
2. Dialectical narrative that enables universal ideas to be realized through spiritual dialectics.
3. Capitalist narratives that overcome poverty through technological progress and Marxist narratives that eliminate exploitation and alienation.
The dissemination of scientific concepts since the Renaissance and the development of literary thoughts have made science, rationality, freedom and the pursuit of secular happiness the main factors that promote enlightenment. Rational thoughts and subjective consciousness, and the concept of freedom and equality constitute the basic characteristics of modernity.
First of all, subjectivity and freedom constitute the fundamental value of modernity. Secondly, self-understanding of truth and logic has become the evaluation and measurement standards for modern discourse knowledge. Finally, secular happiness depends on the growth of social wealth and technological progress. This is the most essential feature of modernity.
After analyzing the essential concepts of various laws produced under the discourse of modernity, we can see that the basic concepts of natural law are related to the grand narrative of freedom and liberation of mankind. The basic concept of analytical law comes from the logical empirical nature of scientific cognition. Sociology and law are a reflection of the development needs of modern secular society. Natural law, analytical law and sociological law are undoubtedly the manifestation of the three modern characteristics of the free human rights theory, logical reason and secular society in modern discourse in jurisprudence, and other legal theories are just various reflections of the basic value of modern grand narratives.
Liota
History of various legal theories produced under the discourse of modernity, and their understanding and definition of the essence of law have one common feature, that is, these theories have developed their own set of theories in the answer to the question of "what is law", undoubtedly from the founders of modern legal concepts such as Rousseau, Montesquieu, Kant, Hegel, to the jurisprudence of analytical law, sociological law and other modern legal theory schools of jurisprudence, sociological law and other modern legal theory schools to the jurisprudence of jurisprudence, sociological law and other modern legal theory schools The people are actively answering this question based on their respective theoretical perspectives, and various understandings and definitions of law have emerged. However, since the birth of jurisprudence, we know the changes in modern jurisprudence, and the answers and definitions of "what is law" by jurisprudence have appeared: "A worrying question is whether contemporary philosophy and legal philosophy will once again be exhausted by formal thought games, and therefore self-denial again. Just as they shamefully deny themselves in modern history."In the disappointing situation, we can see that legal theories outside the three mainstream legal schools, such as behavioral jurisprudence, existential jurisprudence and neoliberal jurisprudence theory, are no longer able to answer the fundamental problem of jurisprudence ontology positively. Does this intentional or unintentional avoidance of the fundamental problem of ontology of jurisprudence mean that jurisprudence is facing an end? However, avoidance cannot solve the problems brought about by this. Since there is no substantive answer to this question, when specific theoretical issues are involved, the conclusions drawn often appear one-sided and superficialized and unconvincing.
While avoiding the problem of ontology of jurisprudence, jurisprudence shows that there is a crisis in the ontology of jurisprudence, but where exactly the problem appears What? The fundamental thing lies in "what is law", the way to raise this question itself, because it is a metaphysical way of asking questions.
in "what is law", that is, the scientific way of asking questions of modern discourse. When the subject faces an object, he always asks about "what" the object is, and gives an essential provision. This essential provision is "truth", the correct understanding of "science", and the fact itself. As Habermas said: "The characteristic of modernity is that the subject has a contradictory and anthropocentric knowledge type." "Modern knowledge type is dominated by a unique will to seek truth. For this will to seek truth, any kind of setback is nothing more than promoting the generation of new knowledge.
In the question "What is law", the essence of law is related to "people", "freedom", "subject", and "society", but the "people" as the subject is abstract, and "people" was invented in modern times in Foucault's words. Therefore, the value in human beings is also given by Enlightenment thought and classical philosophy. "Dharma" is the civilized norm for the abstract modern "human" freedom and rights. In the question and answer to this question, we can draw the conclusion that any modern legal theory is nothing more than a perspective and explanation of "law" made on the metaphysical way of proposing "What is law", and these explanations do not have truth and are only the product of the prejudice of modern discourse knowledge type. That is to say, only under the influence of modern knowledge type based on "subject" and "freedom", "science" and "empirical" that "law" becomes a special discipline, namely "jurisprudence". "Judicine" is the special way of existence of jurisprudence under philosophical metaphysics and modern discourse, and the view of the nature of various laws of modern discourse is the result of the specific evolution and change of jurisprudence.
3. The explanatory generation of "law" after modern times and its contemporary positioning
1. The hermeneutic interpretation of "law" transcends modern discourse
0 The ontological crisis of jurisprudence lies in the metaphysical questioning of "what is law". From the date of the birth of jurisprudence, we have come to the conclusion that it is impossible for us to make a truthful understanding and scientific definition of this issue. But should we avoid this question? This will lead to the shake of the entire legal theory system. We restore the essence of various laws in the Western Western discourse, not to demolish or deny the value of these theories, but to find out the relationship between modern discourse and the basic concepts of modern jurisprudence, that is, how they interpenetrate and participate in the construction of discourse and the legalization of narratives.
We say that the crisis of modern jurisprudence ontology is not because jurisprudence itself has lost its vitality, but because the disintegration of the value concepts it depends on, freedom, equality, rationality, science, and human liberation, and the human ideals represented by these once exciting and grand discourses are constantly questioned at the same time. Rationality and science, once and now in certain areas of knowledge and values, are still regarded as criteria for measuring and judging other knowledge and values.However, when its self-evidentity and truth are doubted, all values based on it, such as modern natural law based on natural human rights and social contracts, and analytical law that relies on scientific logic and empirical correctness, will inevitably float from its solid foundation and become some self-deception false values.
Any understanding and definition of law is a perspective and explanation based on certain prejudices, and the various understandings and understandings of the essence of law in modern discourse are based on the knowledge type of modern discourse. But can we conclude from this that all the explorations of law in jurisprudence that emerge in modern discourse are the products of some prejudice? From an objective perspective, we must admit that this is a prejudicial understanding produced by Enlightenment thought, philosophy of thinking and modern scientific theories, but we should also admit that these prejudices are reasonable. Although these prejudices are no longer "eternal truths" that cannot be doubted, they have various defects and have failed effects in the practical process of reality. But it is relatively reasonable because we cannot escape the prejudice of the times. For example, today we stand on the standpoint of pre-modern feudal patriarchal law and promote the divine authority and hierarchy of the monarchy. The people of a country must be ruled by one person, which is undoubtedly very absurd. The crisis of modern jurisprudence ontology is a manifestation of the crisis of modern knowledge-based self-crisis. The rationality of the prejudice we once based on has been questioned. We cannot believe in the myth that we have fabricated as "the subject can establish a free and equal and beautiful human society through reason and science." Just as people no longer believed in the rationality of the divine authority and feudal imperial system during the Enlightenment era and the May Fourth era in our country. The problem we are facing now is what changes have occurred in the knowledge type of our time, that is, our current cognitive paradigm, and how will we re-integrate our understanding of "law" into a reasonable "bias" that we can accept.
2. Positioning of fair games and "law" in the contemporary cultural context
In our current era, some characteristics of the era different from that of modern times have emerged, generally called the post-industrial era or post-modern era. This refers not only to the periodization in history, but also to a new social and historical state and cultural form. Postmodern philosopher Leota raised the question of "Where will legalization settle after the decline of the meta-narrative?" (What he calls "legalization" is not the process in which we usually understand the legal sense of legislators are recognized to have the power to promulgate normative laws. Instead, it refers to a process through which the "legislators" related to scientific discourse are recognized and stipulated, which determine whether a statement can be accepted into a scientific discourse by the scientific community.) That is to say, after the disintegration of the grand narrative of modern knowledge, how we will place some of the values we currently recognize and rationalize these values. This involves the issue of positioning "postmodernity". His answer to this is that postmodernism is not a complete subversion or denial of modernity, but a rewrite of some characteristics that modernity claims to have. First, it is a rewrite of the declaration that modernity builds its legitimacy on the perspective of liberating the entire human race through science and technology."
Guy Debord
And when we solve the crisis of ontology of jurisprudence, we should also take an attitude of re-proposing the ontology of jurisprudence under the discourse of modernity. The metaphysics of modernity is "what is law". We have learned from analysis above that jurisprudence's answer to this question has reached a point of exhaustion. So now I can only re-ask this question in a metaphysical way. We no longer ask "what is law", but instead propose "how law is produced" and "how law exists."When we restored the modern nature of Dharma, we concluded that the form of Dharma exists in modern discourse, that is, any understanding and definition of Dharma is a perspective and explanation based on the theory of certain prejudice, and the understanding and understanding of the essence of Dharma in modern discourse are based on the knowledge type of modern discourse.
When we raised the question of "how does the law exist", we also included the meaning of how the law should exist when the grand discourse of modernity declines. We say that any understanding of the law is a perspective and explanation of it based on certain prejudice, and we cannot transcend our prejudice, because our understanding itself is contained in this prejudice, and prejudice is the basis of cognition. Therefore, this bias itself is reasonable. We cannot break out of the hermeneutic cycle of "understanding is only understanding in ourselves" (Gadamer). What we need to do now is how we correctly enter this hermeneutic cycle.
If we want to correctly enter our prejudice, we must first understand the characteristics of this prejudice, that is, the characteristics of postmodernism. Postmodernism is an era of anti-basicism, anti-essenceism, and multi-dimensional construction of
and ambiguity inclusiveness, and oppose all forms of hegemony, power and discourse tyranny in social culture. The postmodern concept not only inherits some basic values of modern concepts, but also reconstructs these values. And whether our era can be called postmodern or anything else, we can have to admit that there are knowledge paradigms and values different from modernity in this era. So, how should law exist in postmodern society?
Although jurisprudence has been proposed since its emergence in modern discourse, it has emphasized the value and dignity of human beings. The classical philosopher Kant also proposed that "man is the end, not the means", and the core of his legal theory is also to respect human rights and freedoms. But the person they proposed is an abstract, capitalized "person", not a concrete person, which refers to the entire abstract person, not a concrete person. Therefore, what Holland said is: "Modernity begins with a beautiful desire to liberate mankind, but ends with a devastating threat to mankind." The desire deviates from the facts. Because of the abstract existence of the "subject", "people assume that the laws it formulates for themselves are fair, not because the law conforms to some external nature, but because according to the Constitution, the legislator is just a citizen who obeys the law. Therefore, the public will of the law brings justice, and justice brings the consistency of the will of the legislator, such as law." However, in essence, the legislator who speaks on behalf of the subject does not represent everyone, but suppresses every individual in the name of the whole. Therefore, in the existence of postmodern law, subjectivity must be eliminated, and this requires the introduction of the "language game". "The issue of social integration, as far as it is a problem, is itself a language game, a game of exploration." If we distinguish people in relationships into: speakers, listeners and objects of conversation. Then the legislator is in the position of the speaker, the people are in the position of the listener, and the content of the conversation is "law". In modernist and modern discourse, the speaker is placed above the listener. Although he claims to be "natural human rights", he regards the people as the listener in the name of the whole. The content he is talking about, namely the law, appears in the form of a monologue. Although "sovereignty lies with the people", everyone cannot represent the whole. "subject" is a vain thing that involves the right of the overhead listener to participate in the right of speech by modern discourse. And "the postmodern does not recognize any subject that transcends narrative, and does not leave any constituent factors priority to the narrative. Whether they are the speaker, listener or object to which they refer, because narrative activities are composed of them together." Therefore, in the postmodern, law will exist in a way that a rule arises from a dialogue between the legislator and the people, and this rule will constitute a flexible, diverse, co-constructed language game.In this game, no one is the subject, so it can effectively prevent the subjective discourse tyranny of modernity. In the use of words, you can ask questions and explore, and constantly change the way of the game, so that everyone can better protect their rights.
Conclusion
In this article, we start from the metaphysics of modernity to ask the ontology of legal science “what is law”, and in a way that transcends metaphysics and modernity discourse, we propose “how law exists” to solve the crisis of ontology of legal science.
and try to enter the loop that explains bias with correct entry. In the form of "language game", it points out the way of existence of law after modern times. However, this "how" has only one kind of exploration, not an essential provision, and it should be pointed out that this article proposes the existence of the ontology of law, rather than the existence of specific legal disciplines.
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