Starting with the understanding of the characteristics of legal thinking, this paper analyzes the similarities and differences between legal thinking and other thinking modes such as moral thinking, ethical thinking and economic thinking, and probes into the role of legal thinking in practice.

I hope these analysis and understanding can provide reference for further study in the future.

Thinking, legal thinking, moral thinking, ethical thinking, economic thinking

About the author: Yang Jian, a graduate student majoring in civil and commercial law in Law School of Renmin University of China.

I. Thinking and legal thinking

Thinking is a unique psychological phenomenon and cognitive activity, and it is the operating process and processing mechanism of the information obtained by the subject.

Marx once said? Thinking is a beautiful flower in full bloom in the human spiritual world? .

As far as the process is concerned, thinking includes three steps: cognition, thinking and reaction.

In the process of the emergence and development of the concept of thinking, the connotation and extension are constantly changing with the evolution of concepts such as spirit and consciousness.

Academics often bring thinking into the fields of social science and natural science such as philosophy, law and economics, and give it different meanings according to their respective academic contexts.

In this paper, we pay attention to legal thinking.

Broadly speaking, legal thinking is a way of thinking to observe, analyze and solve social problems according to the logic of law.

The main body of legal thinking includes judges, prosecutors, law enforcement officers, lawyers, experts and scholars in the field of law and other legal professionals.

The thinking of ordinary people when they contact and use the law in their daily life should also belong to the category of legal thinking.

Compared with general thinking, legal thinking has strong professionalism.

In the academic field, legal scholars use legal thinking to study and discuss academic theories; In the field of practice, legal thinking appears in all aspects of the judiciary and runs through the judicial work.

As a relatively specialized way of thinking, legal thinking is an essential ability for every judicial officer.

Take the judge as an example. As a typical legal worker, a judge must take legal thinking as the basic way of thinking when trying a case, and cannot be divorced from legitimacy and pursue political and economic interests or pure moral and ethical values.

Law is a kind of artificial technical rationality. As the balance and core in the field of legal practice, judges have not only mastered skilled legal knowledge, but also mastered unique legal wisdom through professional training, which is embodied in practice in the form of legal thinking.

For judges, thinking mode is even more important than knowledge accumulation, because only under the guidance of legal thinking mode can we correctly identify facts and apply laws.

Not only judges and prosecutors who actively crack down on crimes, but also lawyers who safeguard the legitimate rights and interests of the parties should work under the guidance of legal thinking.

Skillful use of legal thinking is one of the necessary abilities for legal practitioners.

This ability is cultivated through long-term professional training and practice.

In addition to the legal professional field, legal thinking has also penetrated into other aspects of social class with the continuous acceleration of the rule of law.

As long as there is a place where the law is applicable, there is legal thinking.

It should be noted that legal thinking in daily life is often simple, and strict legal logic is often influenced by ordinary thinking, moral thinking, political thinking and economic thinking.

Accordingly, legal thinking is also influencing other ways of thinking.

Because legal thinking has the characteristics of justice, rigor and procedure, legal thinking also plays a role in other fields such as morality, politics and economy, providing technical support for research and practice.

Professor Zheng once pointed out that legal thinking refers to the way of thinking to observe, analyze and solve problems according to the logic of law in the process of public and private decision-making.

Second, the characteristics of legal thinking

Judging from the way of thinking, legal thinking is a special way of thinking.

Legal practitioners abstract and summarize the general thinking trend according to the characteristics of law, forming a thinking mode, which is bound by legal consciousness, legal methods and legal provisions.

This way of thinking, which takes legal logic as the path and legal value as the guidance, is a way of thinking that integrates standardization and value pursuit, aiming at exploring the legal significance of events and making judgments and conclusions that conform to legal norms.

Legal thinking must make judgments and draw conclusions through legal methods such as reasoning, judgment and free evaluation of evidence in the judicial environment of the current law, so as to deal with legal events.

If legal thinking is compared to the soul of law, then legal logic is the skeleton of legal thinking.

Compared with ordinary logic, legal logic emphasizes? Judicial syllogism? That is, according to the requirements of formal logic syllogism, the facts of specific cases (minor premise S) are placed under the elements of legal norms (major premise T), and a conclusion (R) is drawn.

In judicial syllogism, the major premise (current legal norms) can best reflect the characteristics of legal thinking: thinking according to law.

Legal thinking is a way of thinking based on law.

This requires the subject of thinking? Look at the world from a legal perspective? , that is? Legitimate thinking? .

Legitimate thinking has the following two requirements:

First, we should look at the objective phenomenon from the legal point of view, that is, explore the legal significance of the phenomenon.

Starting with the relationship between law and society, this paper examines this phenomenon from multiple angles and seeks the connection between objective facts and legal norms.

It is worth noting that the objective facts here refer to the facts that have legal significance and are adjusted by legal norms, namely? Case facts? .

The task of the subject of legal thinking at this stage is to choose the part that meets the requirements of legal norms from a large number of factual information.

The second is to characterize this objective fact according to legal norms, that is, to apply the law and make causal judgments.

? Legal thinking is thinking based on law. The thinking of jurists can never be completely divorced from the positive law (national law) that has been in force since ancient times. ? This is the fundamental sign that legal thinking is different from other ways of thinking.

Only by applying the law to the phenomenon and combining the two can we explore the legal significance of the phenomenon, draw a plan, solve legal events smoothly and realize the value of the law.

In the process of law application, legal norms can be generalized laws (including constitution, basic laws, administrative regulations, rules and local regulations), narrow laws, even customs, and theories and precedents abroad.

When the facts of a case meet the requirements of legal norms, the legal effect stipulated by legal norms will occur.

However, legal thinking does not stop there. The abstraction of legal norms requires legal thinking to determine the specific judgment result, which is the response of legal thinking as a way of thinking to perception.

In the judgment of legal facts and the application of law, legal thinking permeates and circulates repeatedly between them.

Positive law also creates limitations for legal thinking.

? Positive law provides a starting point for jurists to think and a platform for their work, but at the same time it also limits the position and scope of jurists' questioning. ? How to seek the harmony between rules and creation is a problem worth discussing.

In the process of legal thinking, legitimacy is the first element.

The most basic requirement of the definition of legal thinking is legal thinking.

Whether it is content or form, legitimacy is the first requirement.

Legitimacy not only conforms to the current legal system, but also conforms to the legal ethics and institutional environment of legislators and their society.

Broadly speaking, the legitimacy of legal thinking should be based on the relationship between rights and obligations, on the premise of reasonable form and procedural justice, admit legal facts, apply the law correctly, and pursue the maximization and universality of fairness and justice.

However, in practice, the principle of legality of legal thinking is often challenged by external factors.

The first is moral factors.

Although there are theories that law is the lowest moral bottom line, in judicial practice, limited by the limitations of law and the complexity and diversity of phenomena, judicial practice often faces such problems as? Is it legal or not? Is it reasonable or not? Or? There is nothing to follow. Wait for the embarrassing situation.

China appeared in the verdict in earlier years? Not killing is not enough to make people angry? The sentence ""is the embodiment of this phenomenon.

Here, when legal provisions fail to fully protect social morality, moral logic directly transcends legal logic.

The appearance of this kind of behavior has a public color and is a compromise made by the law to the public.

In our country? Justice and public opinion have always been the standards of evaluation and adjustment in the judicial process of our country, or the frame of reference for judging according to the requirements of substantive justice. ? However, in order to conform to the irrational justice in the eyes of the public, the rights of the other party are easily ignored, which makes it difficult to fully reflect the principles and values of the law.

As Mill said in On Freedom, it is also a kind of tyranny for the majority to force the minority to obey.

On the Cultivation of College Students' Legal Thinking II

In recent years, the phenomenon of college students' crime has attracted more and more attention. Why do crimes occur among people with higher education? It is precisely because these people do not study the law seriously and lack legal awareness, let alone consciously use the law to regulate their behavior.

Keywords: college students' legal thinking and legal consciousness

Contemporary college students are the pillars of national modernization and shoulder the historical mission of connecting the past with the future and opening up the future.

The quality of college students is directly related to the rise and fall of the Chinese nation in 2 1 century.

History requires contemporary college students not only to have scientific and cultural qualities, civilized and moral qualities and innovative ability, but also to have corresponding legal qualities. Improving college students' legal awareness will certainly promote the improvement of the legal quality of the whole nation and promote the process of socialist legal system construction in China.

Legal thinking is people's subjective reflection of social objective legal phenomena, which includes people's views on the essence and function of law, their requirements and attitudes towards current law, their evaluation and interpretation of law, their evaluation of the legality of behavior and their legal concepts.

Legal thinking is a relatively independent and special social consciousness. Its particularity lies in that it is accompanied by the emergence of state and law, and takes social objective legal phenomena as its concrete reflection object. Legal thinking is usually embodied in people's legal consciousness and dominates people's behavior through legal consciousness.

Legal thinking is the core of college students' legal quality. Only by cultivating the correct legal meaning can we distinguish right from wrong, consciously regulate our words and deeds by law, and resolutely correct them? I have the right to freedom, and I can do whatever I want. I don't break the law if I work honestly. Wrong ideas, etc.

College students should not only study law courses seriously, but also actively participate in legal publicity, study the usage of law and promote the construction of socialist legal system in China.

On the university campus, legal thinking is blank, legal consciousness is weak, and even college students commit crimes from time to time.

Why do people with higher education commit crimes? It is precisely because these people do not study the law seriously and lack legal awareness, let alone consciously use legal norms to restrain their behavior.

A high level of education does not mean a strong sense of law. For example, those who commit crimes by computer are mostly people with higher education.

The crimes committed by college students like Yao Jiaxin and Ma Jiajue are enough to arouse our extensive concern and in-depth thinking on the cultivation of legal awareness.

In fact, people have been using it, and college students are no exception. For example, it is a civil legal act to buy food by swiping a card in the school cafeteria.

At present, if you don't learn and understand the law, you can't adapt to the needs of the times.

For example, some students use their knowledge to invent and develop new products, but because they don't understand the intellectual property law and contract law, their scientific and technological achievements are used by others for free, and their rights of signature, technology transfer and corresponding property rights as owners of technological achievements are violated by others.

Therefore, as the embodiment of improving legal quality, college students should have strong application ability. Therefore, college students should focus on cultivating the following abilities: the ability to observe and find problems according to law, the ability to analyze and solve problems according to law, the ability to regulate their own behavior according to law, the ability to protect themselves and other legitimate rights and interests according to law, and the ability to fight against all kinds of behaviors that endanger society according to law.

College students are praised? Favorite son of heaven? It is the future and hope of the country. However, a few college students ignore the law and eventually fall into the abyss of crime, which makes people sigh.

Although a few college students commit crimes, their development trend should attract close attention from all walks of life.

College students' crime is a special social phenomenon, and its reasons also have its particularity. First, the family's improper educational methods and upbringing methods have a negative impact. Second, the high consumption in society has inflated the money worship of some students. Under the temptation of money, crimes such as theft, robbery and intentional injury occur from time to time, ignoring the law.

Third, the defects of school education and the rigidity of ideological and political education and legal policy education in some schools have led college students to break through the moral defense line, take risks and go astray in crime.

In addition, the comfortable university life inevitably breeds bad habits such as leisure and study relaxation, and once faced with the inducement of crime, it is easy to break the law.

Therefore, the most fundamental measure to reduce and contain college students' crimes is to nip in the bud, strengthen psychological counseling for college students, eliminate their personality obstacles and enhance their legal concept.

So, how to cultivate college students' legal concept? In schools, open courses related to law should be set up to spread legal knowledge and guide the formation of college students' legal concept.

A person's legal concept needs to be gradually formed in a certain social environment, and higher education should take improving college students' legal thinking as an important content of quality training.

It is very important to cultivate and improve college students' interest in studying law, which requires them to study in? Interest? Making a fuss about "two characters" can improve the vividness of the classroom, strengthen case teaching and introduce some practical cases into the classroom.

It is also very important to study law after class, and to infiltrate the legal system into college students' campus activities, such as holding lectures on legal knowledge, organizing mock trials, visiting prisons and so on.

Schools can adopt the method of managing schools with the concept of legal system. Words are not as good as examples. Colleges and universities run their schools with the concept of rule of law, and the combination of running their schools according to law and running their schools by virtue can not only improve the legal concept of college students, but also make the campus culture clearer.

Secondly, its own aspect is also very important.

First of all, we should actively study, understand and abide by the law.

Watching more legal programs and legal publications such as legal reports and China legal system can effectively improve your legal understanding and sensitivity.

For college students' crimes, in real life, the judicial organs treat college students as a special group, focusing on thinking and humanization, focusing on saving them and making them become useful talents in society again.

Efforts to cultivate legal thoughts, enhance legal awareness and improve legal quality can improve the knowledge structure and comprehensive quality, and provide a good legal guarantee for students to complete their studies, choose careers and develop in a beautiful university era.

References:

[1] Wu. Introduction to ideological and moral cultivation and legal basis. Renmin University of China Press. 20 1 1 Edition.

[2] Huang Huan and Fu Huiming. Practical teaching reference book of ideological and moral cultivation and legal basis course. Higher education press. 2007 edition.

About legal thinking 3

Abstract: Legal thinking is a way of thinking to observe, analyze and solve social problems according to the logic of law (including legal norms, principles and spirit).

Legal thinking includes: conventional thinking based on legitimacy; Equal thinking based on the analysis of rights and obligations: formal rationality is superior to substantive rationality and procedural thinking.

Legal thinking mode has important practical significance under the background of rule of law.

Keywords: the practical significance of legal thinking characteristics

First, the concept of legal thinking discrimination

So far, legal thinking has not become a universally recognized legal concept, and different scholars have formed different understandings of legal thinking.

What does Mr. Chen Hongguo think legal thinking means? People who live under the framework of the legal system, their attitude towards the law, the way people think and know the society from the standpoint of the law, and the concrete methods people use the law to solve problems in this process. ? This view studies legal thinking from three angles: value (cognitive attitude), thinking mode and thinking method.

Mr. Zhou, professors and some American scholars have revealed what legal thinking is from the perspective of legal profession.

It is considered that legal thinking is to think about problems like lawyers or judges, and it refers to the cognitive process of analyzing and judging problems by using basic legal theories, professional terms and professional logic.

Consider it professional legal thinking.

Professor Chen believes that legal thinking mainly includes: legal thinking structure (the conceptual framework constructed by the subject with the help of legal knowledge and concepts), legal thinking method (which can be divided into the legal thinking method of the legislator's position and the legal thinking method of the judge's position) and legal thinking procedure (starting from the law, thinking according to the law, and ultimately achieving the goal of maintaining the rule of law).

This is an emphasis on legal thinking methods and thinking procedures.

Lin? In his book "Introduction to Legal Thinking", the professor started from the ideological point of view.

It is believed that legal thinking is the unity of legal consciousness and legal culture, and it is the influencing factor of legal development. A high degree of legal consciousness and legal culture is the condition for the effective realization of the functions of the legal system, which is also the premise for the establishment and development of contemporary legal thought.

The author thinks that thinking can be divided into legal thinking, political thinking, ethical thinking and economic thinking according to different thinking objects and ways, and legal thinking is just one of many thinking.

Therefore, it is more appropriate for Professor Zheng to explain legal thinking from the perspective of thinking mode, that is, the so-called legal thinking is the thinking mode of observing, analyzing and solving social problems according to the logic of law (including the norms, principles and spirit of law).

This view includes three aspects: first, legal thinking is a way of thinking, which is to think and evaluate all people and things around from the standpoint of legislation, judicature, law enforcement and law-abiding, and to consciously or unconsciously contact with the law in behavior.

Secondly, legal thinking is thinking according to law, including thinking according to current legal norms, and thinking about legal principles and legal spirit.

Thirdly, legal thinking is not only the patent of legal practitioners, but also the thinking subject of judges or lawyers.

Second, the characteristics of legal thinking

1. Legal thinking is a regular thinking based on legitimacy.

Legitimacy means that everyone must act and think according to the guidance of law, that is, rulings and conclusions must be deduced according to the logic of law, and political, economic and moral principles are not the premise of thinking, so we should pursue the greatest and best political, economic and moral effects within the scope permitted by legality.

Especially in the process of law enforcement and justice, in order to make the conclusion of the judgment conform to the internal logic of the law, we cannot simply consider the pros and cons, costs and benefits, good and evil from the premise of legality and illegality.

Therefore, legal thinking is to analyze and judge people's behavior based on legal rules.

Therefore, legal rules and their logic are indispensable contents of legal thinking, which requires thinkers to pay attention to the existence of legal rules. Everything happens for a reason? .

It especially emphasizes rigor and GAI, and attaches great importance to the logic of analyzing problems and the reliability of conclusions.

The typical example that can best reflect the regularity of legal thinking is syllogism legal reasoning.

Emphasis on syllogism reasoning is mainly to ensure that the conclusion of legal decision can be drawn reasonably, and to explain and demonstrate the reasons for the decision, so that the parties and the whole society can see the rationality and persuasiveness of the conclusion.

2. Legal thinking is based on the analysis of rights and obligations and is equal thinking.

Legal thinking is an analysis of rights and obligations, and legal issues are issues of rights and obligations. Through the analysis of rights and obligations, we can evaluate the legality of various behaviors, interests, requests and expectations.

Legal thinking is manifested in the constant questioning of rights and obligations: does a subject have the right to do such acts, enjoy such benefits and make such expectations? Does the other party have the obligation to act in this way or meet the other party's requirements and expectations in this way? Here, only rights and obligations are the core factors that must be considered unconditionally and absolutely, while whether other factors should be considered conditional and relative.

When taking the analysis of rights and obligations as a clue, we should pay attention to the fact that we can neither confuse moral rights and obligations with legal rights and obligations, nor confuse different legal rights and obligations.

Legal thinking emphasizes equality, which means everyone is equal before the law. As a unified standard, law should respond to all people's same legal and illegal behaviors in the same way.

3. Formal rationality of legal thinking is superior to substantive rationality.

Formal rationality, that is, regular rationality or institutional rationality, is a universal rationality.

Substantial rationality can only be manifested as the rationality of the case-handling result.

Legal thinking pursues substantive rationality in the form of formal rationality, that is to say, for social justice, universal rule justice or institutional justice is primary and fundamental, without which it is impossible to maximize social justice.

The theory of rule of man ignores the value of formal rationality and the role of universal rules and systems in the process of realizing social justice. Instead, I pin my hopes for social justice on my personal qualities and try to rely on the help of "no"? Rules of the game? Restrain saints and wise men, ensure that every case can be dealt with substantively and reasonably, and make social justice depend on contingency factors.

Legal thinking deals with social affairs related to law with the help of regular, formal and objective public reason-law. Although the essence of a case may be unreasonable, on the whole, personal emotional factors are limited and rationality is maximized.

4. Legal thinking is also procedural thinking.

Procedural justice is an important goal of judicial justice and an indispensable feature of legal thinking.

The adjustment of interests and behaviors by law is realized in this process.

Legal thinking requires people to obtain substantive legal results of case handling through legal procedures. Therefore, when thinking from the legal point of view, we should emphasize the premise of procedural legitimacy, that is, acts and opinions that violate legal procedures will be rejected even if they meet the requirements of substantive legitimacy, thus failing to achieve the expected legal effect.

Procedure has its own value, and procedural justice is the premise of substantive justice. Sometimes it may be difficult to get substantive justice that everyone agrees with. In this case, it is better to settle for second best and pursue procedural justice.

Through fair procedures, even if the conclusion is not necessarily fair, it is acceptable to some extent.

But if the procedure is unfair, even if the comparison is made? Justice? Conclusion, this conclusion will be questioned.

Justice pays attention to procedure, because procedure is the restriction of arbitrariness and the guarantee of rational choice.

Third, the practical significance of legal thinking mode under the background of rule of law

At present, China is gradually entering a society ruled by law, governing the country according to law and building a socialist country ruled by law.

Governing the country according to law requires managing state and social affairs according to law, establishing the most authoritative standard of governing the country by the Constitution and laws, requiring all members of society to be bound by laws, including effectively restricting various public powers, and no one or organization has the privilege beyond the law, and requiring the establishment of reasonable interpersonal relationships and the relationship between personal power and state power within the framework of the rule of law.

In the face of contradictions in all aspects of social life, and the phenomenon of non-compliance, lax enforcement and loopholes in laws in social and economic development, it has become the most urgent requirement of current society to establish an orderly political and social mechanism on the track of rule of law.

The construction of rule of law calls for legal thinking mode. Although people's understanding of the rule of law is not completely consistent, law has been paid more and more attention in all aspects of social life, and legal thinking has played an increasingly prominent role in social development.

The significance of legal thinking to the development of the rule of law is multifaceted.

From a technical point of view, legal thinking opens the way for the rule of law with ideas and methods and points out the development direction; From the perspective of education, people learn to understand the way of legal thinking, which directly affects people's rationality and mind, thus having an important impact on legal life.

The influence of legal thinking mode on a society ruled by law has the following three aspects:

1. The study of legal thinking mode can provide legal knowledge and legal values for the society.

These knowledge and values have enhanced people's rational thinking to a certain extent, made people recognize the law, recognized the fairness and coercive power of the law, and made the concept that there is a law to follow and the law must be followed deeply rooted in the hearts of the people.

2. When legal thinking becomes habitual thinking, it will trigger people's daily thinking about the legality of behavior.

As a prescriptive presupposition of legal thinking mode, legal norms provide standards for people's behavior.

When legal thinking becomes a mindset and people habitually think according to the law, people will take observing legal norms as a yardstick to measure whether the behavior in daily life or social activities is correct.

3. Legal thinking mode contains legal knowledge, values and methods, which will have a great impact on people's world outlook and outlook on life.

When legal knowledge, values and methods form a certain concept of the rule of law and solidify in people's minds, the way people look at things and treat things will advance along the road of the rule of law.

References:

[1] Zheng: Outline of the concept of rule of law and legal thinking, Legal Daily, April 23, 2000.

[2] Lin? Introduction to Legal Thinking, Jinan: Shandong People's Publishing House, 2000.

[3] Chen. Legal thinking and its significance to the construction of the rule of law [J]. Law and Business Research, No.6, 2003.

[4] Fang: Internal observation on the uniqueness of legal thinking mode [J]. Learning and Exploration, 2005,No. 1.

[5] Wang Zhi: On the characteristics and functions of legal thinking [J]. Journal of Xiangtan Teachers College (Social Science Edition), 1, 2003.