Thinking About The Legal Voluntarism

When discusses the problem of "what is the law" from the perspective of "should be", there is one theory that called "legal will theory", which argue that the law is manifesting of will and is the product of conscious activities. The origins of the "legal will theory" includes: the theory of God's will ,the theory of king"s will,the theory of rationality will, the theory of public's will, the theory of free will and the theory of ruling class' will. Evaluating legal will theory from the philosophy angle, positive meanings includes: subject's capacity. Negative impacts: the limitation of will, the reason coming from object aspects, the reason coming from subject aspects (cognitive ability limitation and non- rational factor limitation), the space and time and resources and tool limitations. Analyze the legal will theory from the practical angel, there are both positive and negative effects. Its positive affects on the western society includes: On the one hand, the Western Europe rulers formulated the law according to the society need to impel legal development. On the other hand, Western Europe autocracy centralized state inherited and revived Rome's law. Positive effects displayed in China include: firstly, encouraging the establishment of powerful political system and state apparatus. Secondly, according to the needs of social transform, establishing the legal system, compiling the code of written law. Its negative effects is obvious showed in this case which the medieval Europe Germanic feudalism countries treating the Roman law. At that time, along with west Roman Empire demise, and the Germanic person's invasion, the new state took many kinds of measures, caused the Roman society and its law to thorough destruction. The negative effects in China include: It causes extreme backwardness of controlled legislation power, which is disadvantageous to commercial law's development, and obstructs the procedural law's development, and slow the legal rationalization process. Reduced the quality of law execution, the legal will theory thought the law is the tool of government, which means the rule needs is higher than law, it reduced the support of society to the legal foundation, which results in bad moral foundation. It prevent procedural law realization and reduced in the whole to transforms the law into social reality. The legal will theory is not helpful to establish state rule of law. Because the legal will theory existed for a quite long time and the influence is depth in China, considering China is 'the developing' country. Therefore it has the reasons to be existing in China, it also quite reasonable to revise the legal will theory, namely what we want is the market orientation democratic will, opening up to foreign countries's international general will and attach more importance to procedure 's will.