ChineseLegalSystem-Introductiontolaw.docVIP

[I]t is more proper that law should govern than any one of the citizens ---Aristotle, 350?BC, Politics What is law? The concept of law is very broad. Although it is difficult to state a precise definition, Black’s Law Dictionary gives one that is sufficient for our text: “Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.” “That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law”. Definition under the prevailing contemporary Chinese jurists: 法是由国家权力机构制定或认可、并由国家强制力保证实施的、规定人们权利和义务的社会规范的总和。’s power institution 3 . implemented with the guarantees of State’s coercive power 在我国古代，法与刑、律一直可互训，含义基本相通，即指“刑”，并不具有现代“法”的意义。灋从“水”, 表示法律、法度公平如水;从“廌” zhì ,即獬豸,神话传说中的一种神兽,据说,它能辨别曲直,在审理案件时,它能用角去触理曲的人。 Schools of Jurisprudential Thought: The philosophy or science of the law is referred to as Jurisprudence. There are several difference philosophies about how the law developed. They range from the classical natural theory to modern theories of law and economics and critical legal studies. Legal philosophers can generally be grouped into the following major categories. ?The Natural Law School of jurisprudence postulates that the law is based on what iso “correct.” Natural Law Philosophers emphasize a moral theory of law—that is, law should be based on morality an ethics. Natural law is “discovered” by man through the use of reason and choosing between good and evil. ?The sLegal Positivism School lies in direct opposition of ideas of natural rights, where some rights are considered inherent to humans. The principal claims of legal positivism are that: a laws are rules made, whether deliberately or unintentionally, by human beings; and b there is no inherent or necessary connection between the validity conditions of law and ethics or morality. ?The Historical School of jurisprudence believes that the law is an aggregate of social traditions and customs that