Legal Methods and Legal Thinking. Issue 2

Author: Ge Hongyi
Publisher:
Publish Date: 2003-09-01
Features: We live in a world of language, and in a certain sense, the world of language is also our world of life. Language shapes the meaning of our lives in two ways: First, our understanding and grasp of the meaning of our own existence take place within a specific linguistic environment. This is true not only for spiritual life but also for the veneration of material enjoyment, which occurs within a particular context. Therefore, in reality, we are supported in our deep-seated longing and pursuit of meaning by a grand narrative constructed through language. Second, we are also continuously reproducing the meaning of our lives through the language that precedes us, which is why elements of experience, a priori, and transcendence alternate in our lives. In short, language enables us to communicate and interact, helps us understand our world, and allows us to construct a dignified way of life. Law and language also have a close relationship. Law is expressed through language, and the meaning of law is constructed through language. Law itself is a very typical set of life and activity norms constructed through the authority of discourse. Law, of course, relies on coercion. However, the coercion of law is based on a specific discourse authority. Trotsky and Weber successively expressed a common view: in any society, ruling authority cannot be viewed solely from the perspective of the rulers but must also be examined from the perspective of the ruled. That is to say, any form of authority must simultaneously be a form of legitimate rule, and legitimacy refers to the consent of the ruled. The reason the ruled accept the rule of the rulers is fundamentally because they accept the authoritative discourse and narrative language of the relationship between rulers and the ruled. In this sense, the rule of law is also a discourse order. It is not intended to resort to coercion for violence but to establish a special discourse system. All social relationships mediated by language require a set of mechanisms and institutions for identifying linguistic meaning to achieve the purpose of interaction. For example, we must judge whether someone is sincere, honest, and reasonable through what they say, whether their words are logical, and whether their words and actions are consistent, and so on. As a medium for communication and interaction, language generally falls into two categories: one is the use of pure linguistic expression techniques to achieve the purpose of communication or even persuasion, including what is called empty rhetoric, as well as language that is tempting, deceptive, or inciting; the other is the use of knowledge discourse about truth to achieve the purpose of communication. Legal discourse is a combination of both, with a particular focus on the latter, aiming to ensure that people can communicate and interact equally, seriously, and sincerely to form stable social relationships with a shared value consensus. It does not entirely exclude the former, because individual legal activities and legal judgments do not always pursue absolute goodness, and there are no absolute, eternal, or singular standards for judging whether a legal activity, such as a judge's ruling, is correct or not. The language of legal professionals is designed and constructed to persuade, and people can be persuaded because their existing background knowledge and experience make them willing or unable to accept the judgment of legal professionals at that moment, as well as the authority of the narrative discourse contained in the judgment. Therefore, legal professionals have their own discourse system, which is the foundation of their existence. Modern legal professionals have been differentiated into independent professional groups through modern legal discourse. Modern legalism, as an important aspect and content of modernity, is based on the value orientation of formal rationality as its ideological foundation. It is not only a product of discourse authority distinct from simple violence but also a special discourse system with specific forms of reasoning. In this system, the way of reasoning has its own particularity, as do the techniques of linguistic expression and the context, giving rise to a legal professional group known as the legal profession community. Therefore, modern legalism with formal rationality not only requires the governance of rules but also pays particular attention to the core role of the legal profession community in the governance of rules. In its discourse system, competent legal professionals must uphold their duty of loyalty to the law. Therefore, they are defenders of freedom and guarantors of democratic society. Tocqueville compared American legal professionals to the aristocracy that served as the fundamental guarantee of the British free system, while Weber regarded legal professionals as an important symbol of a formally rational society. The reason for this is that legal professionals must be loyal to the law, and the law generally has its own fixed forms. As a result, legal professionals are generally considered a significant force for social stability, and their ability to remain loyal to the law can even determine the degree of rationalization of a society. Are legal professionals truly loyal to the law? Can they remain loyal to the law? If they can, how do they express their loyalty to the law through the form of discourse and the creation of a linguistic atmosphere? If they cannot remain absolutely loyal to the law, or if the rule of law itself is a myth, then what methods and techniques do they use to establish such a mysterious legal empire? These are the questions we hope to address through the creation of this serial publication. We firmly believe that a society governed by law is a society of reason; reason becomes reason within a specific linguistic environment. The context not only includes the differences in thinking styles between people from different cultural backgrounds but also the differences in thinking forms between people from different professions. The so-called legal language and court environment form the foundation for legal professionals to solve various social problems, including transforming complex political and economic issues into legal issues. We pursue the rule of law because we hope to establish a discourse mechanism for solving social problems based on law. Therefore, we sincerely hope that through our efforts, we can contribute to establishing our world of life on a discourse system that truly values reason. In our view, the thinking methods and ways of thinking of legal professionals are an integral part of modern civilized society.