In fact, "ism" is also a problem, but it is too big and far from concrete practice. The "problem" mentioned by Mr. Hu Shizhi refers to the concrete, urgent and crucial problem in reality. At present, legal research rarely talks about "ism", and there is little theoretical system at the level of "ism" except that some scholars sometimes put forward "de-ideology". However, modern western legal theory is based on liberalism, so it is still dialectical &; As far as the orthodox jurisprudence of historical materialism is concerned, how to treat the western theory and practice of rule of law as learning, reference, criticism or research? Actually, it's a messy question. Of course, no one will insist on a negative attitude.
Even today, the discussion about "ism" is not completely illusory, but it is really not easy to clarify each other, and even if it is clarified, it will not be of much help to solve specific problems, so it is more realistic to "talk about the facts". To borrow Mr. Hu Shizhi's words: "Which of the problems that China needs to solve quickly now ... is not an urgent problem?"
However, what is the problem is also a problem that needs serious study. There are problems of size, authenticity, theory and practice, immediate and long-term problems. The question is, which problems are worth studying, or which problems have immediate objective needs. Every researcher can list one or even several directories to study, which is of course interesting, but mainly based on his grasp of existing theories and his observation of society. Interestingly, some people think this is a major problem, while others will take it lightly and even dismiss it as "fake". This is true of the subject guides issued by the Ministry of Education and the Ministry of Justice every year.
The problems that scholars are obsessed with or even insist on will confuse the professionals in the practical department, while the problems that make the practical department "headache" are not called "problems" at all in the eyes of some scholars. Just like after the implementation of the new lawyer law, some grass-roots practical departments have made great efforts to resolve the impact it has brought, while some scholars will attack it for breaking the law and think it is natural to strictly enforce the law without discount. However, the implementation of the new law has always touched on existing interests and habits. If you can't see this, you can't see the problems in reality. To use the most vulgar metaphor, I don't mean that you can cook with a recipe.
What's the problem? We must start with analyzing the problem. Incomplete summary, the problem mainly comes from three aspects: blank and vague, difference and inconsistency, opposition and conflict. When there are no rules and the rules are unclear, there will be a problem of how to treat a fact. It may be dangerous or harmful in reality, but according to the existing laws, it is impossible to give an answer or a clear answer. When there are different plural rules, or the understanding and interpretation of the same rule are different, if a fact must have only one clear answer, then there will be problems in choosing the dominant rule and explaining the advantage. When multiple interests are in opposition and conflict, even if the rules are clear, there will be problems, because the injured party will challenge the legitimacy of the rules or simply despise them. The problems formed by these three aspects will be classified into different fields such as legislation, law enforcement and judicature, and how to coordinate the relationship between the legal system and society according to the corresponding solution mechanism.
In real life, no matter what kind of problem it is, its root lies in the identification of interests and disputes. In other words, as long as there are interests disputes, there will be problems. In order to solve this interest dispute, rules came into being. Law occupies a strong position in all rules only because of its national will and strong guarantee, but law is not always the most effective rule. The formulation and implementation of rules will cause problems by themselves. On the one hand, rules are always made by people, who have their own interests and judgments on the choice of multiple interests. On the other hand, the rules need to be implemented by people, and the people who implement the rules have their own interests and judgments on the needs of interest adjustment. Moreover, the subjects who accept interest adjustment are also people, and they have their own vital interests. Then, there is the problem of how to determine the rules, how to implement the rules, and how to make people accept the rules. At this time, it has entered the theoretical level and even determined the most basic rules on the metaphysical level. Although theoretical researchers remain neutral in the actual dispute over specific interests, they are not completely detached, because theoretical research always chooses positions consciously or unconsciously, and the knowledge pedigree and personal experience of researchers will also affect what he calls "neutral and objective" research. So in a word, problems are always linked with interests, but there are direct and indirect differences between different people and interests.
Such a conclusion may be too general and arbitrary. However, when the relationship between people is taken as the starting point and the end point of the study, and the interests that people have and pursue are taken as the "grasping hands", then the essence of the "problem" is clear enough. Since the "problem" is born of interests, the fundamental way to solve the problem is to confirm the ownership of interests and coordinate conflicts of interests. If we look back at the presentation of "problems" that focus on interests, we can also explain which problems are real or meaningful and which are false or meaningless.
In real life, some social contradictions are sometimes transformed into forms intentionally or unintentionally when presented. So when public opinion is in uproar, the essence of the problem is not clear. Even so, in the sensational "Deng Yujiao" incident in 2009. After the Deng incident, I was lucky enough to attend a seminar on in-depth media coverage. At that time, a freelance writer mentioned that without the strong support of the media, Deng Yujiao might be executed, suggesting that the "justice" of the media prevailed over power. Paradoxically, however, how can an ordinary criminal case be interpreted as a "decisive battle" between the government and the people, public opinion and the judiciary? It is not surprising that there will be contradictions between the government and the people. Officials and people are in the position of managers, and they are managed separately. There are bound to be contradictions between them, and even opposition in some incidents. However, in Deng Yujiao's case, the victims did not appear as managers, but as "officials", and Deng Yujiao did not defend his rights because they were "officials". This criminal case is interpreted as "the opposition between the government and the people", which is really worth pondering. Who is the real promoter of the Deng case and what are the benefits? I'm afraid we need to lift the veil and see what we really are. Of course, the handling process and results of the case are also greatly lamented: in order to win public opinion, the judiciary should also follow the judicial rules and agree with the so-called "public opinion", and ultimately it is just "losing the wife and losing the soldiers."
Practical problems should be analyzed by interest analysis, but for theoretical problems, especially the so-called "pure" theoretical problems, it seems a bit unreliable to use interest analysis as a tool, because many so-called "pure" theoretical problems, such as the debate about systems and categories, are not directly related to interests in real life. Actually, it's not. Of course, we don't need to force interest analysis into "pure" theoretical research. However, in legal research, the theoretical problem of "purity" is not pure enough to be divorced from the phenomenon world, because legal research is always related to rules, and rules are always related to interest adjustment. Even if the "pure" legal theory disdains to talk about specific issues, if the ego is alienated from the phenomenal world, then such "pure" research is meaningless and can only create "bubbles" by creating some empty concepts.
The theoretical problem of "purity" is actually an ideological problem. Because of the object of concern, the content and purpose of research, ideological problems advocate speculation in methods, and the research approach is mainly deductive, so it promotes concept-category-system, and so on. Because the study of "pure" theory seems detached and is the highest realm of human reason, it is also obsessed and persistent by many researchers. But "purity" is relative to the purity of the phenomenon world, and it is an abstraction of specific problems. In fact, as far as the concept is concerned, it is first summed up from the phenomenon, but it looks more and more mysterious after continuous and layered abstraction, but it can still be traced back to the phenomenon world in terms of its roots. Similarly, the relationship between categories is also a simulation of the phenomenon world, rather than a purely logical product.
Legal research, like other social sciences, always answers some metaphysical questions, but these questions are not raised out of thin air. It is precisely in the face of the entanglement of various interests in the world that legal researchers hope to see the essence from the phenomenon, thus explaining how the "problem" is formed. Of course, this is not the purpose. The ultimate goal is to establish reasonable rules, and apply the ancient philosophy of China, that is, to establish rules that conform to Tao. "Tao" does not exist out of thin air, but exists in the phenomenon world, which needs to be excavated through human rationality, but "Tao" does not depend on rationality.
Whether it is a practical problem or a "pure" theoretical problem, in the final analysis, it is related to interests, but it is discussed in different words at different levels. In fact, legal research should face interests directly, and only realize that all conflicts in real life are related to interests. No matter the relationship between individuals, individuals and collectives, individuals and countries, or even countries, all relationships that need legal attention are related to interests. Clarify the emotional factors and discourse expression, and eventually you will see the essence under the phenomenon, from which you will also see and ask real questions.
Some young legal researchers always complain that writing articles can't find new topics. The implication is that the problem has been studied by predecessors, and the rest can only be "fried cold rice", at most, adding new "seasoning" when "fried". However, as a matter of fact, the number and complexity of legal system construction in China are unprecedented. I read an article a while ago, and the news said that China is a "rich mine". China is really a "rich mine" of legal issues. Can it be seen everywhere? Just because backward researchers are easily confused by the so-called "pure" legal theory, obsessed with concepts and systems, and inadvertently isolated from real life. Once they enter the society, they find that what they have learned is not enough, so they in turn blame what they have learned for being useless. In fact, when I was in school, I didn't pay attention to how the theory I studied was put forward and what was the use. Fundamentally speaking, I didn't cultivate the problem consciousness, let alone how to solve the problem. At present, China society is in the process of great adjustment of interests. After 30 years of reform, we still need to continue to reform, but only continue to adjust the pattern of interests. Many questions arising from this need to be answered by legal persons. Some people will say that most of them are political and economic issues, but political and economic issues will eventually be "shaped" by the law. Moreover, many problems can be analyzed from multiple angles, and the legal angle cannot be absent.
We often say that it is more important to ask questions than to solve them. Indeed, only when problems are discovered and raised can problems be solved. However, only when the real problems are discovered and put forward can the problems be truly solved. To find the real problem is to see clearly the interest factors in various relationship chains. The problem of "pure" legal theory is far from the phenomenon world, but it will eventually return to the phenomenon world to test. Moreover, "pure" legal theory is also providing general methodological guidance for making rules, which will eventually play a role in the adjustment of specific social relations, so the interest factor is also considered in the study of "pure" legal theory.
At this point, I began to worry that this essay was also full of "problems"