Reason theoretical research

Author: Xu Diyu
Publisher:
Publish Date: 2005-05-01
Features: The roots and justification of the effectiveness of contracts (legal acts) have long been explained by the theory of will determination in the laws of modern countries. However, the explanatory power of will determination has faced significant challenges in the contemporary era. This book argues that a legal cultural interpretive approach should be adopted to examine the roots and justification of the effectiveness of contracts (legal acts). Based on this approach, the book first raises questions and defines the scope of research in Chapter 1, and on this basis, establishes the fundamental methodological stance and specific research methods. In Chapter 2, the book retraces Roman contract law from a historical-empirical perspective. This section primarily discusses the concept of contracts in Roman law, the relationship between contracts and stipulations, the constraints of formalism and typological legalism on the contract system, and critiques Maine's historical romanticist political interpretation theory of the roots of contract effectiveness in Roman law. It thereby argues, from an empirical standpoint, the true roots of contract effectiveness in Roman law. Subsequently, the chapter analyzes how medieval glossators and commentators reconstructed the concept of contracts through the theory of cause, freeing the contract system from the constraints of formalism and typological legalism, and how they used scholastic theory combined with the theory of cause to explain the justification of contract effectiveness. However, since scholastic jurists only gave the theory of cause a theoretical importance, asserting that the roots of contract effectiveness lie in the practice of virtues such as generosity and the justice of exchange, and due to the shift in the spirit of modern rational legalism, the classical theory of cause declined in modern law. Nevertheless, the decline of the classical theory of cause is only in terms of its moral significance. In fact, in the legal systems of modern European countries, although the theory of cause has lost its substantive ethical meaning, it still retains explanatory power in the legal technical structure of the contract or legal act system and other related systems. To illustrate this, the book examines the two typical legislative models of the French legal system and the German legal system. Chapter 3 focuses on the development or transformation of the theory of cause in French law. According to its substantive law, the theory of cause was absorbed into the French legal system's system of consensual debts, with "the legal cause of debt" listed as one of the conditions for the validity of contracts. However, "cause" is one of the most uncertain concepts in French civil law. For this reason, French scholars have engaged in long and intense discussions on the scientific definition of cause and its specific role, forming various theories such as traditional cause theory, anti-cause theory, and modern cause theory. Modern theories still adhere to the theory of cause to explain the justification of contract effectiveness and thoroughly elaborate the definition and role of cause in specific institutional applications. Scholars in this legal system have even expanded the theory of cause to develop the justification for systems such as contract termination and the principle of change of circumstances, thereby establishing a broader explanatory model for the justification of contract effectiveness. In Chapter 4, the book notes that while German law does not explicitly stipulate the theory of cause, it theoretically uses it to explain the justification of the effectiveness of legal acts. However, since German law has surpassed Roman law and the French legal system's concept of contracts with the concept of legal acts, the theory of cause is not only applicable to creditor contracts but also to real right contracts. It is governed by the concept of giving acts, which unifies constitutive acts and abstract acts, and uses the theory of cause to explain the justification of the effectiveness of giving acts. Generally, there is a cause in giving acts, but in constitutive giving acts, the lack of a cause directly leads to the invalidity of the legal act, while in abstract giving acts, the lack of a cause does not affect the validity of the act itself. However, since the effectiveness of abstract giving acts is indeed lacking in justification due to the non-existence or failure of the cause, it needs to be corrected by the system of unjust enrichment. Additionally, due to the principle of abstraction, the protection of the interests of third parties in the transaction order has been partially guaranteed, so the scope of application of the principle of good faith acquisition is also limited. In other words, in German law, the task of protecting the transaction safety of third parties is accomplished by the collaboration of the principle of abstraction and the principle of good faith acquisition. After conducting a historical examination of various models of the theory of cause, Chapter 5 reviews the true reasons for the poverty of modern voluntarism and attempts to reconstruct the substantive ethical value of contract justice through the theory of cause. On this basis, the book interprets the development of the legal justice of the theory of cause in the specific contexts of various legal systems from a historical-empirical and normative-empirical perspective, evaluates the theoretical coherence of the theory, and attempts to effectively draw on the theory of cause in the specific context of the current laws of China through the organic transplantation of institutional units, providing suggestions for the justification of the effectiveness of contracts or legal acts and the logical construction of related systems.