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Maidujun’s note: Holmes’ motto at the beginning of "Common Law" "The life of law is not logic, but experience" must be familiar with it. In the German legal community, which has always been known for its rigorous pursuit of logic, there are also profound reflections on how much logic can play in law. Today's article comes from a professor at the Law School of Bonn University in Germany. He will take us to re-understand the significance of "logic" in legal academic research and paper writing from the aspects of how to argue and how to innovate. There are 16 writing suggestions in the article, and it is recommended to collect them.
Author= Ingberg Puppet
Professor of Law School of Bonn University, Germany
Compilation=Shentu yan
Peking University 2021 class Criminal Law Doctoral student
Source=WeChat official account｜Criminal Law judgment
Original title=How to defeat the enemy with decent attitude? A German friend's suggestion
Introduction
Holmes' motto at the beginning of Common Law " The life of law is not logic, but experience " must be familiar with it. In the German legal community, which has always been known for its rigorous pursuit of logic, there are also profound reflections on how much logic can play in law. In another familiar book, "The Primary School of Law Thinking", Professor Pupper, a famous criminal law scholar, positively analyzed the reasons why logic cannot be implemented throughout the legal argument. At the same time, she also brought readers' attention to the fact that in the analysis of specific problems, rationally evaluate the value of logical reasoning in legal argumentation. However, in addition to the specific individual issues, the more macro question is how does this ambiguous relationship between logic and legal argument affect the academic ecology of the German criminal law community? This issue pushes and translates several paragraphs from a short essay "A Letter of Concern to a Future Criminal Law Scholar" published by Professor Pupp in 1999 in the "Goltdammer Criminal Law Archives". As an extended thought on the aforementioned issues, it is for readers.
It is worth mentioning that "The Concern Letter to a Future Criminal Law Scholar" is not an academic paper in the usual sense. In terms of writing style, this article is modeled after Maulah's pseudonym under Reginhardus Muraquensis Monacensis in 1962. The article provides various "tactical suggestions" for a young friend who intends to commit theft in a variety of ways to avoid legal sanctions, but it is actually a satirical example of the unreasonableness of German legislation at that time (and it can be mentioned that 55 years later, another criminal law scholar Wolfgang Mitsch was inspired by this to write "The Concern Letter to a Future House Thief"). Therefore, what this short article in which Professor Pupper believes that "a spotlight on the current situation in German criminal law" is probably a matter of opinion. In any case, readers and friends should take the following content with caution~
At the beginning, this "friend like a kind father" laid the strategic tone of "taking offense as defense" for his young friend's future academic debate. Of course, it is also a good idea to learn an ostrich when necessary -
When arguing with your opponent - your opponent is anyone who has written about your subject - you must especially consider that only a few people have read the original text he wrote, and that you cannot convince him and his followers that their point of view is incorrect anyway. Most importantly, you have to impress those who only know about theoretical or legal opinions from second-hand quotes or just from your explanation. Therefore, don’t introduce other views too carefully. An excellent strategist will bypass the enemy's strong positions and discuss specifically based on its weaknesses. If the other party has ever chosen an unwise example to prove his theory, then this is the only example you use to explain his theory. If he has made misleading expressions, be careful not to eliminate this misunderstanding in his opinion. Those who express their opinions badly deserve to be explained worse.It's easy for you if your opponent even does unforgivable stupid things, namely admitting that his theory will be difficult in individual circumstances and brings examples to it. You are limited to citing these examples and putting the rest aside. Learn from it that you will never do such stupid things yourself. Your theory is perfect in every way, and in every case, including such a quirky case, it will get cheap and impartial results in the most straightforward way. However, if you think of a situation that does not match your theory anyway, forget it quickly. You can leave it to successors to uncover the mistakes and shortcomings of your theory, and they will do it thoroughly.
If you can't find any shortcomings in the point of view you want to abandon, then cleverly stuff one in it. You can give your argument a stupid explanation within the scope of your ingenuity and doctoral supervisor. However, you may have to be careful of the latter. Because he may be an endangered "homo theoreticus" and he will not appreciate this when someone distorts his argument. A thorough study of his writing will tell you whether this is true, which is crucial to you. You should be more careful with those big guys anyway, otherwise you will eventually be considered arrogant.
You use the most stringent standards for clarity and clarity of other solutions, so they all fail miserably. If a reasoning is "unconvincing", it will be completely rejected. But if your opponent is logically arguing, he is naive and ignores the feelings. Because logic is not decisive in law. Never let yourself be annoyed by a feeling of uncertainty, that is, the solution you propose, measured by your own standards, will encounter more tragic failures than other solutions. This is not your business, but your successor.
In addition, the excellent arguments of are also inseparable from the rich and detailed literature reserve . However, don't be discouraged when facing a vast sea of works. As the spirit of this Opti friend: Don’t always think that the cup is in mid-air, the important thing is to let the world see the half with water.
The most important thing here is to prove your erudition. Prove that you have fully mastered the entire literature in your field from at least Feuerbach to today. But from now on, the words of Luther also apply to you: "A jurist is a poor guy." Therefore, look for philosophy, sociology, history of criminal law or foreign countries, especially in English literature. If you have to admit that the solution you are promoting is not produced by you, then if you find it in a book by an Australian language philosopher or an article by a judge of the U.S. Supreme Court, rather than in an article written in German in the Journal of Criminal Law that anyone can read, it will leave a far deeper impression. You have to prove that you are resourceful in discovering new information or reinterpreting it. You have not been trained in historical or philosophical text criticism methods at all, that doesn't matter; neither does most teachers.
As for this problem that makes many young scholars bald, this selfless friend also said "no need" and attached a few good words to help his young friends avoid detours. After all, 's full understanding of the industry trend is the essence of effectively improving business capabilities.
…You don’t need to wait until your new theory is mature to put into practice before drafting it. Anyway, practice won't care about it. You probably often read sentences in judgments: "This judgment committee believes that there is no reason to deal with the numerous objections in the literature, because the Imperial Court had already…" First, practice became unacademic, and then academic became unavailable.
... Compared with his American counterparts, German professors do not do those things that study trivial matters, such as improving existing systems and concepts, but rather drafting basic ideas. Based on this basic idea, the entire criminal theory system can be redeveloped. For example, human behavior is purposeful, the law serves the goal, punishment is the ultimate means to defend the law, or criminal law serves the stability of the social system.
In the past, I would suggest you come up with a theory that looks eye-catching at first glance and then a very profound one... If you look closely, it is not suitable at all. In this way, you will be opposed by everyone, but you will also be quoted by everyone, and that is the most important thing. Today, this method no longer works. Because there are already too many theories...
However, don't let yourself be tempted by the various theories and opinions that appear in this way to try to calm the dispute...try to illustrate the disputes that people have been eagerly seeking to resolve for a century. The reason for the emergence of the problem is that the raising of the problem itself is wrong or even meaningless. This behavior is very uncooperative and will at most win you well-deserved contempt from your colleagues. Isn't this bad enough that almost all of our achievements involving the current laws are made into waste paper by the three corrective or even distorted words of the legislator? We should not be involved in this destruction work ourselves.
… What you should perfectly master is ’s superb typography . You should use all the printing techniques on your computer: dazzling fonts, various grayscales to highlight your sentences, but most importantly, you have to make many charts and tables. Modern people learn with their eyes, not with their minds. A chart, an illustration, a table or a formula, the concepts are accurately placed in their place according to your theory or system, which will make readers believe that your system and theory are the only correct ones. If you inevitably give an answer to the questions exposed by your new theory, and your readers are already impatient, you can say: "This is beyond the scope of this article's research" or "due to space limitations, this article will not continue to discuss this issue."
Finally, this friend also attached a few tips to add icing on the cake to the paper. However, what I want to point out for you is that the last two points are proposed for this young friend who wants to go to the next level and reach the top of academics in the future. After all, if he does not have a famous name, who would want to read the "Book of Heaven" you wrote?
Pay attention to the correct use of adjectives. If the distinction your opponent makes is unreliable at first glance, it is strange, incomprehensible or ridiculous. If your own distinction is not reliable at first glance, it is small. If your opponent encounters a so-called penalty loophole, it is unbearable (the penalty loophole is always unbearable). If you encounter penalties loopholes, they can only prove the fragmentary nature of the criminal law (fragmentary nature is always good in criminal law). If your opponent has bounded difficulties - everyone has them - they are insurmountable, but the difficulties you encounter are inevitable. If you want to take over an idea from someone else without quoting it (some people use the ugly word plagiarism), you must give an opinion on the idea particularly clearly so that no readers think you have copied something from someone else.
even when explaining your argument, don't make their proposals from them, but from your proposals, even if you have neither analyzed nor proved them so far. First, you can point out to your arguments every doctrinal sin they have committed, a contradiction, cycle argumentation, non-conformity, or at least a violation of the principle of guilt. Second, get your readers used to the correct terms and arguments.Therefore, after "view A", "view B", "view C", etc., the "correct solution" finally appears clearly and strictly, the readers are ready.
… Make full use of professional terms in other disciplines. For example, in German criminal law, it has long been a fashion to replace Begriffsumfang with Extension and replace Begriffsinhalt with Intension (i.e., the words that represent extension and connotation in the British and American analytical philosophy replaced the original expressions in German, editor's note). No one is interested in learning the principles and basic concepts of semantics to which these professional terms belong.
If you have created some new expressions so far, it is time to develop your own language. Trust me, it’s much easier to express ideas in complex and pretentious ways than in plain and simple ways, especially when you haven’t really figured out the inner connection you want to present.
…If your readers can understand every word you immediately, you will not be respected by him. First, when he must adapt to a large amount of words from you through patient research (studying Latin: academic activities; enthusiasm, dedication, preference for someone), he will develop a sense of humility towards the good medicine for bitter medicine, and then he will slowly understand your thoughts and be added during discussions. But because he has long been a prisoner of your language, he is also a prisoner of your thoughts, your concepts, your ideas. You can see the immeasurable advantages of using your own language...
After reading this, are you also touched by Professor Pupp's humor and insight? But no matter how joking is, the important thing is that we hope that in addition to Professor Pupp's humorous and personalized writing, we can gain some inspiration from our study and work.
and everyone encourage you, wish you good luck ~
logic in law first lies in fully revealing the premise of a theory , rather than hiding it in a seemingly logical argument model.
—Pupo
Articles only represent the author’s personal opinions and positions
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