Principles of Law: An Analysis of Norms

Author: (USA) Michael D. Bellinger
Publisher:
Publish Date: 1996-01-01
Features: This book is a significant work by Michael D. Bellinger, a professor of philosophy and law at Florida State University. The author begins with a general analysis of legal principles and employs normative and comparative analysis methods to concisely summarize and critique the fundamental principles of major legal areas such as procedural law, property law, contract law, tort law, and criminal law. For Chinese readers seeking a comprehensive understanding of the Western legal system, particularly the legal principle system, value foundation, legislative purpose, and operational procedures of the common law system, this book provides abundant materials and perspectives. For scholars engaged in legal research, the author's theories and research methods hold significant reference value.
Excerpt: People must also distinguish between legal principles and non-legal principles. Legal principles are those used by judges when making judgments or by those who develop legislation for judges to use. Therefore, it is important to highlight the role and power of judges rather than making premature judgments about substantive or procedural issues. The following discussion distinguishes the roles of courts and judges from other government organizations, particularly legislatures, while also pointing out other features that may or may not be evident in the legal system. For principles that can be justified in our field of study, there are important implications for the institutional constraints on judicial activities. Courts are generally limited to adjudicating actual cases or issues raised by one of the parties. The U.S. Constitution limits the cases and controversies heard by federal courts (Article III, Section 2; see also Mermin 1973, 174–176, 179–180; Wright 1983, 53–59). This limitation does not prohibit "declaratory judgments" when disputes involving legal issues arise, which may be contained within a real controversy. However, it does prohibit advisory opinions, under which an individual or group merely seeks an answer to a legal question. Not all common law courts are subject to such restrictions. Certain courts, such as the Supreme Court of Canada, may disagree with questions submitted to them by governing bodies (such as legislatures). This approach is rarely used, especially in the field of study discussed here. We will assume that courts are limited to hearing cases brought by disputing parties. This restriction on individual disputes has another meaning in terms of limiting the range of solutions a court can provide. Courts must render judgments applicable to the parties involved in the case. Of course, court judgments may fail to clearly articulate any right to relief, but this is still a judgment. Courts cannot simply refuse to rule due to complexity. Although appellate courts may frequently deny cases, lower court judgments remain valid. The U.S. Supreme Court may decide that matters concerning Congress rather than the courts are political issues, but this is also quite rare and does not apply to the field we are studying (see Baker v. Carr, 369 U.S. 186 (1962)). Additionally, when a court issues a "post-judgment," it is legally binding on the parties. However, although accepting a judgment for damages may sometimes be far more difficult than receiving a satisfactory court judgment, this fact is not particularly important for most of the issues this book addresses. Although it is assumed that court judgments will be enforced, this assumption may be false in places where it is likely to be so and where it has important implications for acceptable principles. Courts have limited investigative powers. They can investigate only matters relevant to the specific case at hand. They do not have the authority to conduct general investigations, such as examining a company's operational measures. In common law systems, the burden of collecting and presenting evidence lies with the parties. At least in the U.S., due to the "Brandeis brief," lawyers can and do provide relevant social information, but courts cannot conduct the general social investigations that legislative committees and investigative committees undertake. In civil law countries, although courts are more actively involved in collecting and presenting evidence, especially in criminal cases, they do not possess the powers of legislatures and are limited to the cases at hand. The assumptions made here about court investigative powers do not involve differences between common law and civil law courts. The issue of differences is partly discussed when examining the defense system. Of course, I have a certain bias toward common law systems. Courts do not always correctly apply principles. If one assumes that courts always correctly apply principles, then different principles or rules might be accepted. For example, assuming a perfectly correct court, a "limitation clause" might simply state that a case cannot be submitted to the court for adjudication if it is barred by statutes of limitations, as allowing it to be heard would be unjust. In reality, such a rule might be difficult for courts to enforce. Certain obvious boundaries are needed for courts, just as they are for potential litigants. Therefore, a better rule would be to prohibit bringing cases where the basis for a claim arises more than three years after the right to claim has arisen.
Postscript: Postscript on Translation
In contemporary Western legal studies, legal philosophy (jurisprudence) research has gradually expanded and deepened into specific legal fields, giving rise to a body of works that explore general theories in various legal branches from the perspective of legal philosophy and using legal philosophical methods. These works provide philosophical reflections on the foundations and developmental patterns of legal branches, forming an intermediate discipline that connects legal philosophy with civil law, criminal law, procedural law, and other branches of legal studies. Michael Bellinger, a professor of law and philosophy at the University of Florida, is one of the more representative works in this field, titled Legal Principles: A Normative Analysis. This philosophical monograph, included in the Library of Law and Philosophy, summarizes, analyzes, and comments on the modern Western legal system, particularly the legal principles of the common law system. It addresses and explores issues of significant theoretical and practical importance because: first, legal principles hold a special position and role in the composition of legal systems and the operation of legal institutions; second, in modern Western legal scholarship, the principle issue is one of the focal points of debate. The term "principle" derives from Latin (principium), meaning "beginning, origin, foundation." In law, a legal principle refers to comprehensive, stable principles and guidelines that can serve as the basis or source of rules. The characteristics of principles are that they do not presuppose any specific, concrete factual state, do not prescribe specific rights or obligations, nor do they specify certain legal consequences. However, they guide and coordinate the legal regulation of all social relationships or relationships within a specific field. Principles are indispensable when formulating legal rules, conducting judicial reasoning, or choosing legal actions, especially when dealing with novel or difficult cases that require balancing overlapping or conflicting interests to find reasonable and lawful solutions. Principles can be divided into two major categories: policy-based principles and axiological principles. Policy-based principles are political decisions made by a state regarding objectives or goals that must be achieved or tasks to be accomplished in a certain period or aspect. Generally, they concern the economic, political, cultural, and defense development goals, strategic measures, or social mobilization of a society. Axiological principles arise from the essence of social relationships, are widely recognized, and are regarded as legal axioms. Policy-based principles are highly targeted, and the policy-based principles of a country or region differ depending on its social problems. For example, it is impossible to implement family planning policies such as limiting births and childbearing in a country where population growth is negative. Axiological principles are not divided by east or west, nor do they distinguish between capitalist and socialist systems. For example, whether in China or the United States, civil legal activities between private parties must invariably adhere to the principles of voluntariness, equality, and fair and reciprocal exchange. Both policy-based and axiological principles can be divided into fundamental and specific principles. Fundamental principles embody the essence and fundamental values of law, serving as the guiding ideology and starting point for all legal activities, forming the soul of the legal system, and determining the unity and stability of law. Specific principles are the concrete manifestations of fundamental principles, serving as the guiding ideology and direct starting point for certain legal fields or types of legal activities. In the legal system, the advantages and unique functions of principles are: first, broader coverage. Each principle is an abstract standard derived from extensive real or hypothetical social life and relationships, covering a richer range of social life and relationships than a rule. Second, macro-level guidance. That is, they provide directional guidance for people's behavior over a larger scope and longer period. Third, strong stability. This stability helps maintain relative stability in social life and relationships. In any legal system, principles are indispensable because: first, they play a role in maintaining the continuity, stability, and consistency of legal rules, while also serving as the starting point for subsequent legislation. Second, as the "nerve center" of the legal system, principles are an important guarantee for correct legal reasoning. Third, principles can compensate for the shortcomings of rules. While rules have the advantages of certainty, operability, and predictability, legislation cannot be limited to rules alone, or it would not be able to adapt to a changing world. Fourth, principles can limit the discretionary power of state organs within legal and reasonable limits. Discretion is indispensable for realizing the functions of state administration, ensuring the efficiency of state organ operations, and maintaining social order. However, unlimited discretion is a curse. The establishment of legal principles not only grants discretionary power to state organs but also restricts this power to a range that does not infringe on citizens' rights. Of course, the proportion of principles varies in different levels of legal documents. Generally, the proportion of principles should decrease in the order of the constitution, laws, regulations, and rules, because lower-level legal documents are formulated to implement higher-level legal documents and should be more specific and operable.
Controversies surrounding legal principles have persisted among modern Western legal scholars. Analytical jurisprudence scholars argue that law is composed of rules, and rules constitute the entirety of law. In contrast, sociological jurisprudence scholars and natural law scholars argue that the rule-based model of analytical jurisprudence misrepresents legal reality, as law is not only composed of rules but also of principles and other legal elements. In the process of legal operation, principles, like rules, both define people's rights and obligations, serving together to guide behavior, evaluate conduct, and regulate social relationships. The difference lies in that rules are either effective or ineffective when applied; if two rules conflict, one must be invalid or abolished. Principles, however, offer greater flexibility; they are reasons that people should consider when acting. When multiple principles intersect, the conflict between them must be resolved based on the weight of each principle in the specific context (case). The result may be that one principle is superior to another in the current context, but this does not mean that the principle currently in the minority is no longer a valid principle, as it may play a decisive role in other contexts. As reasons for action, principles do not lose their validity simply because other reasons prevail in a particular situation. There are many other debates surrounding principles. Bellinger employs normative analysis methods in the book, summarizing and commenting on the principles of major legal branches such as procedural law, property law, contract law, tort law, and criminal law in relatively concise language. For Chinese readers seeking a comprehensive understanding of the Western legal system, particularly the legal principle system, value foundation, legislative purpose, and operational procedures of the common law system, the book provides abundant materials and perspectives. For scholars engaged in legal research, the author's theories and research methods hold significant reference value.
The translation of this book was participated in by Zhang Wenxian, Song Jinnà, Zhu Weiguo, and Huang Wényi; Zhang Wenxian was responsible for the overall proofreading of the translated manuscript.
Translators
September 20, 1994