Law and Practical Reason

Author: Ge Hongyi
Publisher:
Publish Date: 2002-07-01
Features: The main contents of the three parts of this article can be summarized as follows: The first part emphasizes that rationality is the foundation of legal reasoning, as it relies on human rationality. The rationality of law is based on the rational essence inherent in humans. Rationality is a function and ability that distinguishes humans from animals, implying a certain level of understanding and control over the external world and oneself. Law and rationality have a close intrinsic connection. Firstly, the ontological foundation of law, a fundamental issue in legal studies, is incorporated into the field of research through rational discourse. Secondly, the legitimacy of law itself is justified through rational discourse. Historically, the rational discourse used to construct law aimed to explain the objective internal connection of law and, based on the universal principles it relies on, to elucidate the legitimacy and justification of law. Thirdly, the divisions among various legal theories and discourses are rooted in disagreements over the concept of rationality. Therefore, it can be said that "law is a product of rationality." This proposition includes two aspects: On the one hand, law is a product of human conscious activity, as humans possess the ability to reveal and understand legal phenomena. On the other hand, legal phenomena also contain rational structures that can be grasped by humans. Based on this, a rational legal view typically includes two fundamental characteristics: First, it firmly believes that law has a formalistic logical structure, meaning that law is a system of rules with a legitimate hierarchical relationship between them. Traditional rational legal views hold that the legitimacy of rules either comes from an objective entity external to humans (the natural law theory) or depends on higher-order rules constructed by human rationality (the legal positivism view). Although these views have some issues, the approach is commendable. Second, it firmly believes that people can construct a just social order through their logical thinking and formal logic. This form of logical thinking is equally commendable.
The second part discusses the meaning of practical rationality and the historical theories on the relationship between law and practical rationality, emphasizing that the key to legal reasoning lies in explaining and justifying the legitimacy of law. The purpose of law is practice, which is a concept corresponding to theory, referring to human actions based on free choices, while theory refers to pure cognitive activity, that is, cognition for cognition's sake, or scholarship for scholarship's sake. Therefore, the purpose of law is to establish a standard for just behavior. Practical rationality refers to the human capacity to choose just behavior. Studying the relationship between law and practical rationality lies in clarifying how legal practitioners can apply their rationality to the process of choosing just behavior. Whether a behavior is just or not is primarily an ethical issue, and law and ethics are closely related, both belonging to normative sciences. In the past, people believed that just behavior stemmed from humans' ability to grasp the external objective natural world, forming an alliance between morality and knowledge. However, with the advancement of knowledge, people realized that normative science is fundamentally different from empirical science. Empirical science explains the truth of objects, while normative science explains their legitimacy. The legitimacy of law revealed by law does not lie in an objective entity outside the law but in the objectivity of the social interaction activities of legal practitioners, that is, the objectivity formed in the relationships between subjects. To grasp this objectivity fundamentally cannot rely on natural scientific methods. Therefore, understanding law as practical rationality requires people to link law and morality while rejecting the overuse of natural scientific methods in legal research.
The third part primarily discusses practical rationality in legal practice, emphasizing that on the one hand, people need to connect law and morality to determine the basis of legal legitimacy, and on the other hand, they cannot replace law with morality. Legal positivism opposes replacing law with morality and should adopt this view of legal positivism, adhering to the basic tenets of formalist legal views, which is to strictly follow the law. However, since law itself is not as perfect as legal positivism claims, it is also necessary to adopt the perspective of legal empiricism and observe legal phenomena from an empirical standpoint. The defect of legal empiricism lies in viewing law as a chaotic collection of empirical phenomena while ignoring the rational organization of experience in legal practice, thus overemphasizing "experience" and neglecting "rationality." Therefore, studying practical rationality in legal practice involves drawing on academic resources from natural law theory, legal positivism, and legal empiricism while firmly grasping the concept of practical rationality. Using relevant knowledge from legal hermeneutics, linguistics, and legal argumentation theory, it constructs a way of thinking for practical law. The basic characteristics of this way of thinking are: emphasizing the use of legal rules and principles as the major premises in the practical reasoning of law, acknowledging the dominant role of formal logic in legal reasoning, while not avoiding the openness of legal rules but not denying the certainty and objectivity of law. It holds that because extensive communication and sufficient dialogue in legal practice must be based on the objectivity of communication language, the openness of rules and the ambiguity of principles do not necessarily lead to conclusions of value nihilism and relativism. Furthermore, it explains that by strictly adhering to the basic principles of practical rationality in legal practice, an ideal legal discourse communication mechanism and process can be established to ultimately resolve the procedural and substantive issues of legal legitimacy. In other words, practical law aims to reconstruct the ethical value foundation of law in the context of modern scientific development.
The conclusion primarily reviews the process of the article's topic. From this, it can be seen how the theoretical issue of "law and practical rationality" formed for the author. It may help to understand the author's basic views.