The Concept Of Law And Method Of Realization Of Law

Law is the concept of the core content of ontology of law, which is not only the core of jurisprudence, also the basic issue of jurisprudence. And the implementation of the law is part of the law of operation category, including legislative, judicial and law enforcement and law-abiding and legal supervision, etc. In reality, the natural state law itself has many shortcomings and the insufficiency, and the implementation of law is also faced with severe test. This thesis mainly apply the "common sense, custom, sense" to the law field, make up the lack of law, make law play its effectiveness, and organically connect Chinese traditional culture and the modern law spirit to walk out a modernization path of a combination of tradition and the modern rule of law in China.This thesis consists of two parts, in addition to introduction and outside. The first part discusses four characteristic of law, namely the abstractness, clarity, rationality and universal relevance, which reveals the basic difference between law and other things. However, Law form of abstraction characteristic brings law lagging defects in the natural state, and the law also has the disadvantages such as uncertainty and irrationality, even the law having relative and rationality in the meanwhile. And the universal relevance of law proves to be just an unrealized and untouchable myth. In order to improve the shortcomings in the natural state law and to make the law achieve its expected social purpose, this thesis proposes to make the"common sense, custom, sense"as the formulate, interpretable and applicable law basis: firstly,"common sense, custom , sense"can make the proper legal judgment and legal interpretation and make up a loophole in the law to new generate interest demand and rights appeals; secondly, it can eliminate legal words'uncertainty factors to a great extent and help people correct understand and determine legal language meaning; then, it can reduce the contradiction between the content of law and rationality, when we put value judgment, principles and rules, the essence of reasonable factors into law, which social common people accepted; finally, social ordinary people taking the "common sense, sense, custom" as behavior standards can predict the law effect of the behavior and make reasonable adjustment and arrangement to safeguard his lawful rights and interests.The second part is about"the implementation of the method"problem. First, the implementation of law is based on the"common sense, custom, sense". It not only because "common sense, sense, custom" can improve the shortcomings of law in the real natural state and under let the law achieve, but also because "common sense, custom, sense " and traditional Chinese culture have something in common that Chinese cultural tradition contain not only "reason, righteousness, emotion", also go with "common sense, custom, sense " recognized codes of conduct in ancient human factors and social ordinary people recognized that the basic truth and people with the basic emotions, etc.Second, the implementation path of the law is to take "common sense, custom, sense" as the core and soul of china's law modernization. China's law modernization should inherit, reform and innovate the traditional Chinese culture, that is to inherit the rationality part of "truth, righteousness, emotion" in Chinese culture tradition and blend it in the law substantial contents, and take value judgment (irrational), basic emotional (custom) understudied and accepted by human beings in modern law system. Meanwhile, we should transiform and innovate the parts of the modern rule of law spirit discrepancies in Chinese cultural tradition and give it the spirit of the Times connotation. So it can enter the context and discuss category of modern rule of law and transform to be the basis modern law spirit. Second, since "common sense, sense, custom" held by ordinary citizens goes with Chinese traditional culture and inherited the quality ingredients of Chinese traditional culture, we should formulate, apply law according to"common sense, custom, sense"in legislation, enforcement, judicial and law-abiding aspects."Common sense, custom, sense"is not only related to Chinese traditional culture , but also base on the reform and innovation of Chinese cultural tradition by modern law spirit, which we can walk out of a combination of Chinese law modernization path between Chinese traditional culture and the modern legal system.