Introduction to Legal Thinking

Author: Karl Engisch
Publisher:
Publication Date: 2004-04-01
Features: About three years ago, I wrote a short article, questioning myself and my colleagues in the legal profession community, "How to Find One's Place in Life, What Does Law Depend On?" I made some corrections to the widely regarded important prerequisite for doing legal scholarship well—"The True Art Lies Outside the Poem"—stating that one must first enter from the outside before going beyond it. By sheer coincidence, after my article was published in the Legal Daily on January 14, 2001, the works of Professors Wang Zeyjian and Huang Maorong on legal methodology were published in mainland China. Subsequently, I often heard the name of La Ronze mentioned in casual conversations with students. The Chinese translation of La Ronze's Methodology of Law in the Graduate School Library of China University of Political Science and Law became highly sought after for a time. It is impossible to accurately determine how many times it was completely photocopied, but one of my students alone had it copied for others at least ten or eight times. In such circumstances, legal methodology can be considered one of the bowls of legal practitioners. How can this be seen? The fact that Engisch's book has been published for nearly half a century and has gone through eight reprints is itself a clear evidence. However, this fact alone does not seem sufficiently convincing, as legal practitioners can still survive outside of Continental Europe where legal methodology is not well-developed. But let me add two counterarguments. First, the Common Law, Civil Law, and Islamic Law systems do not lack their own legal methods, though their contents vary and differ to some extent, lacking a "theory" of legal methodology. However, the research of Common Law scholars is stronger than that of other legal systems. Second, without a conscious and trained methodology, one can indeed adjudicate cases based on one's authority, but the cases will not be clearly resolved, and the parties involved will often be dissatisfied. This is certainly sometimes due to the judge's value judgments, such as partiality or conservatism, but it largely manifests as a lack of skill. Law is a discipline full of practical rationality, and its charm lies not in sitting and debating, constructing values, as other disciplines also share this mission, but in how to apply values to facts through norms, making judgments that are externally binding and internally persuasive. This skill is what allows the presupposed values and norms to run on the field of facts, gaining new life or continuing their existence through their movement. Without skill, the values of freedom and the principles of good faith remain hidden, no matter how many emotions they possess, with whom can they speak? Forever separated from the facts like stars in the Milky Way. Therefore, Engisch urges legal practitioners to "glance between the grand premises and the facts of life." While skill may not be as lofty as values or as authoritative as norms, the difficulty of mastering it is not inferior to that of grasping values and norms—it is not something anyone can easily practice. Whether this assertion is a biased prejudice can only be answered after you patiently read Engisch's book, especially when you find his analyses of cases such as abortion, theft from a vehicle, and receiving stolen goods as convincing, yet you are not entirely sure where the reasoning comes from. In fact, for many years, students who have graduated from law schools, like ordinary people, often see men and women more than plaintiffs and defendants; in recent years, La Ronze and others have faced an external heat and internal cold: their works are frequently cited, yet their tools are rarely used effectively; in recent years, in the analyses of cases like the "Huang Pledges Case" and the "Grape Case," there has been little display of methodological elegance, mostly still self-obsessed. All these (including myself) show how difficult it is to carry the skill. The reasons for this difficulty are numerous. Some teachers believe that opening up humanistic sentiments and exhausting the principles of righteousness is the right path, earning cheers from the academically exhausted younger generation due to modernization; there are also institutional barriers that are hard to break: those who specialize in legal philosophy cannot touch departmental laws, and vice versa. Legal methodology, however, requires expertise in both, yet such individuals are rare; additionally, reading La Ronze and Engisch is not like flipping through legal essays—it requires sitting upright and brewing a strong cup of tea. Fortunately, more people have already seen the light. The "what" of human rights and the rule of law must rely on the "how" of prioritizing and prohibiting judicial silence to be effective. Understanding the training of skills is probably not about mass-producing legal craftsmen who rise early and practice diligently in the face of difficulties. "An Introduction to Legal Thinking" pursues another goal: "An Introduction to Law," which, generally speaking, not only guides readers toward the methods of legal thinking but also directs them toward the law itself and its specific professional fields. However, in this book presented here, the discussion focuses on helping law students, as well as interested outsiders, understand the logic and methodology of somewhat mysterious and somewhat puzzling legal thinking. Moreover, the discussion is limited to the core issue of legal discovery, thereby excluding "higher-level" doctrines, such as the function of legal construction and system formation. Only from this perspective can the substantive legal issues contained in the exposition be explored. Because the tasks raised for legal logic and methodology have already been explained in the Studium Generale magazine on pages 76 and following in 1959. Now, I will only highlight the following point: legal logic is a material logic (materiale Logik). It should, on one hand, be based on and operate within the framework of formal logic, and on the other hand, demonstrate in coordination with specific legal methodology how people obtain "true," "correct," or at least "reasonable" judgments on legal matters. A legal logic and methodology understood in this way are not a "technique" for teaching tricks, which might make it easy for those interested in law (Rechtsbeflissenen) to grasp the thinking tasks presented to them. Nor is it the psychology or sociology of legal discovery, which examines how people deal with facts (defacto) in practical daily life during the process of acquiring legal insights. Rather, legal logic and methodology are a reflection on the not-so-easily-visible, substantive justice (sachgerechten) legal reasoning process. They aim to discover (within the limits of human cognition) "truth" and to make well-reasoned judgments.