Legal Essays

Author: Wu Jingxiong et al.
Publisher:
Publish Date: 2004-07-01
Features: The excerpt states that "right and wrong" is a natural rationality, as if there were prescribed rules. For example, "yes" is considered "yes" by everyone, regardless of which person, country, or era. Conversely, the same applies. This is the natural law (Jus naturale). In English, it is called (Natural law), a kind of law that seems to be given to us by God, the same for any country or era, and something that every individual can enjoy. During the Middle Ages, the Dark Ages, when barbarian tribes from the north invaded the south, Rome fell, culture stagnated, and it wasn't until the Second Renaissance that someone studied "Roman law" and discovered this "natural law," giving rise to the school of natural law. The school of natural law can be said to be the (mainstream) of legal philosophy. They (advocate) that "when we study law, we use a good standard set by our ideals to criticize the current law, so that it can progress." From this perspective, the philosophical school is not studying what law is, but rather what law ought to be. Simply put, the philosophical school uses philosophy to study law, not studying "what is law" but studying "what law ought to be." Because they want to study what law should be, this school believes that there is "natural law" in the world. They say, "Law is nothing but right reasoning that is common to all." Therefore, this school believes that law serves the happiness of the people. However, in reality, humans in the world are not equal because everyone's environment is different, and there are many disputes. It is impossible to use one person's rights, obligations, and happiness as a standard. Therefore, this school often says, "There is no ideal person in the mind; it is entirely hypothetical that one should enjoy what kind of happiness, obtain what kind of rights, and fulfill what kind of obligations. Then, using the abstract happiness, rights, and obligations of this person to formulate specific laws and apply them to the society and the people." On the surface, it seems that this standard is not bad, but if we study it carefully, we realize that the philosophical school is building castles in the air, with little practical benefit. We know that "justice" does not have an absolutely fixed and unchanging standard; it varies with time and place. For example, if we take India as an example, there was once a custom where a widow would be burned to death in a fire, which was considered a honorific and sacred act. However, in our view, this is a brutal and inhumane practice. Therefore, according to the philosophical school, using the idealized and abstract happiness, rights, and obligations of an individual as a concrete standard is far too distant from reality. We see that the French and American revolutions were influenced by the school of natural law. They took the ideal individual as the standard, asking what happiness, rights, and obligations such an individual should have. As a result, their focus was on the individual, with the individual as the unit, and they (greatly reduced) the rights of the state while (greatly expanded) individual freedom, making the state powerless to interfere. However, these circumstances, though influenced by the philosophical school, were also a reaction against excessive despotism, leading to an extreme emphasis on individual freedom. But this ideal raises problems in political philosophy. Political philosophy holds that the state is a union of countless individuals. The school of legal philosophy, however, is "based on the individual, using various methods to resist the organized state." Is this theory a good phenomenon? I can use concrete facts to demonstrate this. The U.S. Constitution has a provision called "freedom of contract." For example, if my country is facing severe economic difficulties, I can go to a capitalist or factory owner and say, "I am willing to work sixteen hours a day for you, and I hope to earn three dollars in wages." I can enter into a contract with him. If he is also willing to enter into this contract, it is entirely a matter of personal freedom—I am willing to enter into this contract, and he is willing to enter into it, with no coercion on either side. In theory, the state should not interfere. If it does, it would be an infringement of personal freedom. However, we must consider whether such a contract is good and whether the state should tolerate its existence. Of course, it should not. But according to what was discussed earlier, with the individual as the basis, the government has no way to interfere. Therefore, the U.S. Constitution was once thought to be very comprehensive, but in reality, it is not. Because when the individual stands against the state, it overly emphasizes individual freedom and forgets that the people and the state are a joint organization, not an opposing entity. We see that the U.S. Supreme Court constantly uses various methods to amend the constitution, making it a defect that allows it to, on one hand, align with new political realities and, on the other hand, expand central power while reducing extreme individual freedom. From this perspective, the ideal of the philosophical school of law is indeed far removed from reality. This school of legal thought is not bound by specific individuals; whether it is written or unwritten law, it is acceptable. Unlike the historical school of law mentioned earlier, which is bound by specific rules. However, the main shortcoming of this school is that it is too speculative and far removed from reality, and it sets the standard for law as too rigid and narrow. We know that nothing in the world is permanent, even ideals change with the facts.