法理学笔记司法考试、法学专业最新笔记系列（the notes of jurisprudencethe latest notes series of judicial examination and law major）

《法理学笔记司法考试、法学专业最新笔记系列（the notes of jurisprudencethe latest notes series of judicial examination and law major）》由会员分享，可在线阅读，更多相关《法理学笔记司法考试、法学专业最新笔记系列（the notes of jurisprudencethe latest notes series of judicial examination and law major）（12页珍藏版）》请在装配图网上搜索。

1、法理学笔记-司法考试、法学专业最新笔记系列（The notes of jurisprudence - the latest notes series of judicial examination and law major）The overall impression should be examined through a pass and a question.Three point two sevenThe change of the history of legal thought.Three point two eightRelated content of Sociology o

2、f law.Six point one three1., the characteristics of legal methods and legal thinking:Use a way of reasoning rather than simply solve the problem of violence. The force of the country is to protect law enforcement backing, is normally ready just in case. Law is the combination of reason and forceIt m

3、ust be based on legal reasoning, judging and solving legal problems. Law, not morals, habits, etc, is the basis of argument. Law is the balancer that regulates social conflictThe determination and shall be conducted in accordance with relevant legal procedure. Procedure precedes justice2. Marxs basi

4、c views on the nature of lawThe nature of a law is a multi-level structure, and the nature of the law at different levels is intrinsically linked together, which constitutes the essence of law. The essential hierarchy of law is manifested as:The essence of moral law for the performance of the formal

5、 law, national law, which is enacted by the state, the fingering is recognized and guaranteed by the state force of the implementation of the official code of conduct. The formal method embodied in law always by public authorities in accordance with certain procedures formulated or approved authorit

6、y; always rely on the power mechanism to ensure the realization of formal method based on formal; always forms to be published.The essence of the law reflects the class nature of law, namely, in class society, the will of the state law reflects the will of the ruling class is actually. This is becau

7、se only the ruling class has the power to raise the will of this class to the will of the state by virtue of the intermediary of the state, and no other class can do it.The essence of the method was demonstrated by material restriction, namely the content of the law is restricted by social existence

8、, the contents of the will of the ruling class is the content of the law is not baseless, nor the inherent class, but is decided from certain material production of social common interests and needs of the class sexual selection.In summary, lawmakers not to create the law, but only in the legal repr

9、esentation, is objective existence in the social life including the relations of production, class relations, kinship, social relations and the corresponding social norms and social needs of national law, and be protected by the authority of the state. Therefore, the essence of law is the unity of s

10、tate will, class nature and social material restriction.The essence of the two law as the initial manifestation of formal law, official, also known as national law; secondly the essence of law reflects the class nature of law; the essence of law embodied as law material restriction, fingering the co

11、ntent is restricted by certain social factors, but also by some agency will determine the final material life the conditions, historical traditions, customs, national structure and international environment condition is relative to the social and material conditions for the minor factors in social f

12、actors.3., the force of the law is not equal to pure violence, and the coercive force of the law is based on statutory coercive measures and sanctions. Moreover, in the process of enforcement of law, it is the moral power of law to guarantee its function constantly in the process of law enforcement.

13、The normative function of the 4. law includes five kinds: guideline, evaluation, education, prediction and compulsion.The social function of the 5. law involves three fields of economic life, political life and ideological and cultural life, at the same time, it involves two directions of political

14、function and social function. The social function of law is to establish and maintain certain political order and social public order.Limitations of the 6. law:The law is based on society, so it can not go beyond the needs of social development. The law may lag behind or emerge loopholes when social

15、 reality changes before the law.Law is only one of the social norms. It is not the only way to adjust social relations. The law should be restricted by other social norms, social conditions and social environment.The scope of the law is not unlimited, and some social relations are not suitable to be

16、 adjusted by law, such as friendship, love relations, etc.Limitations of the law itself, such as limitations of language ability.The difference between the value judgment and the fact judgment of the 7. law:The direction of judgment is different. The value judgment of law takes subject as orientatio

17、n and scales with the difference of subject. The judgment of law is based on the existing legal system and not by the will of man.The dimensions of judgment are different. The value of the law judge mark has a strong personal subjectivity, influenced by emotion, attitude, to determine the main inter

18、ests and needs; the fact judgment will remain neutral and value neutrality, influence as far as possible to eliminate all kinds of subjective and objective factors.The methods of judgment are different.The value judgment is a normative judgment, the law should concern how problem; method of judgment

19、 of facts by descriptive judgment, pay attention to the law is actually how problem.The authenticity of the judgment is different. The authenticity of the value judgment of law depends on the degree of agreement between the value relationship between the principal and the object, and the value goal

20、of different times is different, which is the result of social selection after the historical test. The truth of the judgment of law depends on whether it conforms to the object truth.8., in general, freedom is at the top of the value of law; justice is the externalization of freedom; it is the stan

21、dard of restricting other values under freedom; order must be bound by the standards of freedom and justice.Justice can become a standard of value judgement is independent of law, can be used to measure the law is good or bad law.9., the difference between legal principles and legal rules:In the con

22、tent, the provisions of legal rules are clear, as the main body to set specific patterns of behavior and the legal consequences of specific provisions; legal principle is more general and vague, do not set specific behavior patterns, only put forward general requirements or standards.In the applicat

23、ion, the rule of law is only applicable to a certain type of behavior; legal principle is the value criterion of a certain behavior, a legal department or all legal system are common, with the macroscopic guidance.In the mode of application, the rule of law is to all or nothing approach to the case;

24、 rules when applicable, either valid or invalid, or is it being followed, or is in violation of. The principle of law has different intensity, and the principle is more flexible when applicable. When the two principles conflict in specific cases, the judge must balance the strength of the case accor

25、ding to the specific circumstances of the case and the relevant background.Generally speaking, the rule of law should be expressed by legal provisions, but in special cases, the rules of law may also be carried and expressed by precedent or custom.10., the content of the legal right is actually the

26、three elements of the right - freedom, claim and right of appeal. The right of freedom is the foundation, the right of claim is the content of the entity, and the right of action is the guarantee.11., the jurisprudence of the case is not the origin of our national laws, nor is the habit of the origi

27、n of our national laws, but the habit of being recognized by the state as a customary law has become the unofficial source of our national laws.12., from a legal point of view, should we affirm or deny the retroactive effect of the new law?Law is the norm of peoples behavior, which is used to direct

28、 peoples behavior. According to the law, a person makes an arrangement, decides, or does not do something, in order to anticipate the possible effect of the action. Thus, the law provides people with the expected effect of behavior. But this kind of behavior is expected to be achieved. On the one ha

29、nd, the law is required to be stable and not frequently changed; on the other hand, the law is required to be public and its content is well known. In this way, people can direct their behavior according to the law. And the law that people can know can only be the law of his behavior at that time, t

30、he person behavior can not predict the change of the law at that time, and how can change. In this way, when the behavior is made, the evaluation of behavior can only be based on the behavior of the effective law, and can not be changed by the behavior of the new law to evaluate. That is to say, the

31、 state can not be used to guide the legal norms today yesterdays peoples behavior, not because people previously act now appears to be illegal and bring them to justice, namely the negative law retroactivity, behavior evaluation old old method. Otherwise, it will be unfair to the actors. So, in prin

32、ciple, from the old.However, the provisions of the new law are sometimes more beneficial to the perpetrator. If the new law is applied, it will not harm the perpetrator, but it will enhance the interests of the party, and it will not arouse the unfairness of the party. In this way, we can affirm the

33、 retroactive effect of the new law and apply the new law retroactively to the evaluation of old times. This is a special case of a lighter case.13., the principle of concurrence of legal liabilities:As for the concurrence of legal responsibilities among different legal departments, they should be de

34、alt with in general. If the relatively minor legal liabilities have been investigated, the heavier legal liabilities shall be taken into consideration. In practice, the concurrence of legal liabilities refers to the concurrence of civil tort liability and liability for breach of contract.14., the di

35、fference between the two major legal systems:In the characteristics of legal thinking mode, civil law belongs to the deductive thinking, and the common law belongs to the inductive thinking, focus on analogical reasoning.In the origin of law, civil law is the official source of French law, common la

36、w and statutory law and case law are the formal source of law.In the classification of law,Civil law countries generally divide the public law and private law as the basis of legal classification, while the common law system is the basic classification of common law and equity law.During the proceed

37、ings, civil law and canon law program to belong to the inquisitorial system of litigation, the common law is the adversary system.In the compilation of code, the main development stages of civil law are representative of the code, especially in modern times, civil law countries have carried out larg

38、e-scale codification activities. The common law system carried out a great deal of legislative activities in the Tudor Dynasty, and the number of laws enacted in modern times has also increased, but on the whole, it is not inclined to make systematic codification. In addition, there are still many d

39、ifferences between the two parties in the court system, legal concept, legal application, technical and legal concepts.Civil law system and Anglo American law system:Characteristics of continental law system:Comprehensive inheritance of the law of the Rome. Codification, legal standardization, abstr

40、action and generalization.Make clear the division of labor between legislation and judicature, emphasize the authority of making laws, and generally do not recognize the function of law making by judges.Law plays an important role in promoting the development of law. Generally speaking, trial proced

41、ure is adopted in litigation procedure.Characteristics of common law system:Take Britain as the center, based on the common law of england. Take precedent law as the main form and follow the precedent.The change is relatively slow and conservative, reflecting the habit of backward looking.In the dev

42、elopment of law, the judge has prominent function. The system is complex and lacks systematicness.The focus on the procedure of litigation centralized doctrine.15. rule by lawOne meaningA country under the rule of law is the first concept used in german. The early rule of law refers to a particular

43、form of state in medieval Europe, especially the German Empire, which was then considered a guardian of peace and order. The modern sense of the rule of law, is the product of the German bourgeois constitutionalism movement, its basic meaning is the state power, especially the administrative power m

44、ust be exercised in accordance with the law, so that the rule of law is sometimes called the rule of law government.Two basic conditionsThe protection of human rights by law to restrict the abuse of public power. The law of governance.The establishment of tort and restrict the power of state power b

45、y the constitution.We give extensive civil rights. The establishment of the judicial principle generally, such as the independence of the judiciary.The general relationship between the 16. law and human rightsThe human rights are the legal evaluation standard. Human rights are the source of law. Do

46、not reflect the demand of human rights law is not good law, never have legal and contributed to the legal order; and the law embodies the spirit of human rights and content, is a good law in general, is a manifestation of social progress law.The law is the embodiment of human rights and protection.

47、The realization of human rights depends on the confirmation and protection of the law. Without the legal recognition, declaration and protection of human rights, human rights can only stay in the proper state of moral rights, or often face the risk of being infringed and can not be relieved. Physica

48、l fitness is often materialized in the form of legal rights. On the basis of human rights and legal rights, only by obtaining the most basic human rights can the general rights be converted into legal rights; on the other hand, the legal rights are the embodiment and guarantee of human rights. The existence of human rights only in the form of legal rights has practical significance, and basic human rights must be legalized. The legalization of human rights is restricted by the economic and cultural development of a country.