Legal wisdom in the clear case

Author: Xu Guo'ai
Publisher:
Publish Date: 2005-07-01
Features: This book collects over 100 cases that occurred in the United States and the United Kingdom and had a significant impact at the time. These cases are mainly divided into three categories:
- Famous Cases: Cases that have public influence in society;
- Principal Cases: Cases that are of typical significance and importance;
- Leading Cases: Innovative cases that open up a "new world" in law.
In terms of structure, each case in this book, which is a separate chapter, is divided into three parts:
- Part 1: An objective description of the case facts. Each case is a complete, vivid, and typical story, reflecting the life challenges we may encounter every day.
- Part 2: The judge's ruling. Judges use the wisdom of law to analyze and resolve legal disputes in a specific and detailed manner. Through the analysis of legal principles and rules, they provide excellent guidance for handling similar issues.
- Part 3: The author's commentary on the case. Here, the author combines specific cases with the history and theory of law, engaging in metaphysical thinking based on legal practice.
This book is aimed at a wide range of readers. Whether you enjoy strange stories, are interested in legal reasoning and the wisdom of law, or enjoy legal philosophy, you will find what you are looking for! How far is law from us? (Preface)
First, let's look at two legal provisions:
- Article 218: If a doctor performs a severe operation on a freeman using a bronze knife and causes the freeman's death, or if the doctor cuts the freeman's eye sore with a bronze knife, thereby damaging the freeman's eye, then the doctor shall have a finger cut off.
- Article 823: A person who intentionally or negligently unlawfully infringes upon the life, body, health, freedom, property rights, or other rights of another shall bear the obligation to compensate for the resulting damages.
The first provision comes from the Code of Hammurabi, nearly 3,800 years old, which is considered the oldest extant code and a of ancient law. The second provision comes from the German Civil Code, which was enacted 1,900 years ago. The former is regarded as the most ancient code on record, serving as a model of ancient law, while the latter is considered the most mature modern code in the West, setting the standard for modern civil codes.
The gap between these two codes spans nearly 3,000 years. Over this period, human legal systems have undergone numerous changes alongside human evolution.
The first provision (Article 218) presents a legal scene: a doctor fails in an operation, leading to the death or injury of a patient, and as a result of their actions, they lose a finger. The second provision (Article 823) presents an image of legal authority: a dignified figure commands the punishment of those at fault.
The legal scene gives us a vivid, concrete, and lifelike image of law, while the legal authority presents a conceptual, abstract, and professionalized image of law. The evolution of law from specific cases to abstract rules is considered a form of "progression" in law. This evolution has brought us some positive aspects but has also lost some vitality.
The abstraction, regularization, and professionalization of law allow legal practitioners to deduce specific legal principles from general rules, enabling them to apply the law and determine the rights and obligations of parties in a case, regardless of the vast differences in facts between cases. At the same time, this "scientific" approach to law has also distanced law from social life, with legal knowledge being monopolized by a few "social elites." The subjects of legal operation are no longer the living people of society but rather the lawmakers and judges, as well as other professions.
Is this evolution progress or regression? Related questions include: How far should law be from real life?
China originally had its own legal traditions, but they were interrupted during the late Qing Dynasty. Our ancestors inadvertently copied Japan's legal codes, which in turn were copies of German legal codes. As a result, China's current legal system lacks roots in Chinese social life and also lacks the social foundations of Eastern and Western legal codes.
Judges study Western legal codes and apply Western legal traditions to handle issues specific to Chinese society. While there is no problem applying Western legal rules to universal human issues, when dealing with issues that differ between the East and the West, legal practitioners impose Western legal concepts on Chinese problems, thereby violating Chinese society. Legal practitioners have not fully grasped the social life underlying Western legal theories, and in doing so, they have violated Western society as well.
China's adoption of Western law has become a reality, and "the localization of Western legal systems in China" is merely a scholar's aspiration. The convergence of legal systems and the loss of national legal identity are general patterns in legal development.
Against this backdrop, our work is not only to advocate for the construction of a Chinese-style rule of law but also, more importantly, to clarify how Western traditional law originated in Western society. This is also a starting point for this book: to discover the meaning of Western legal rules from the life of Western society.
Connecting legal rules to social life and ultimately forming a legal rule system—the most typical legal system being the common law of the United Kingdom and the United States, or, in professional terms, the Anglo-American case law system. The content of this book is an introduction, interpretation, and commentary on Anglo-American case law.
For each case, the dispute between the parties involves a legal event, each of which is tense, conflicting, subtle, and even personal, thereby holding social and news value, making it suitable for front-page headlines. When the parties go to court, judges propose several solutions, each backed by legal reasoning. The condensation of this reasoning forms legal rules. These rules determine the legal fate of the parties and also guide the behavior of the general public in similar or analogous situations, as the rules guide the expected outcomes of legal actions.
In line with this, my expression of each case is divided into three parts:
- Part 1: A description of the case facts, where curious readers may find what they need;
- Part 2: An interpretation of the legal rules formed or applied by the judges, where readers interested in legal wisdom will enjoy the insights;
- Part 3: A metaphysical commentary on the case, where readers who like to dig deeper can find further lines of thought.
The cases selected for this book are basically divided into three categories:
- Leading Cases: Cases that can be called "leading cases," each representing a new form of litigation and legal rules;
- Principal Cases: Cases that could be included in law school textbooks;
- Famous Cases: Cases that can become topics of public discussion.
For convenience, this book“”（renmingai, meaning "famous cases").
If after reading this book, you have one of the following reactions, then I believe the book has been well worth the effort:
- "This book is fun, the cases are interesting, and the cartoons are great."
- "The judges' analyses are insightful, and I now know how to handle similar cases."
- "Understanding this book isn't easy, but it was worth the mental workout. Haha. Law is actually like this. It's not so far away from our lives!"