Legal Thinking Inquiry

Nowadays, the law has a great influence on our life. In the social order wherethe law is regarded as the spindle, the law is changing people’s cogitation.Meanwhile, more and more legal factors arise in the mind. The increasingly maturelegal thinking also strengthen the idea of the Rule of Law。In fact, there’re manycases which violate the legal thinking in our legal practice. The reason is the legalprofessionals lack a unified legal thinking. When a judge referees a case, it maybeoccurs that the verdict is not according to the debate. At the same time, the differentlegal thinking can lead to the contextual differences and communication barriers.The method of analyzing the basis of rights of claim not only is a mode ofthinking; it also is a method of analyzing civil cases. Savigny derived logicalsubsumtion structure from formal rationality characteristics of Roman law. Logicalsubsumtion behavior is bind to the field of substantive law under the guidance of theconcept of right of claim which is invented by Windschield. With the concept of rightof claim is established in the German Civil Code, this mode of thinking has becomeprevailing legal way of thinking in Germany and other civil law countries. It alsoaffects judicial practice and legal education deeply. The logical starting-point of themethod of analyzing the basis of rights of claim is five-compilation style of theGerman Civil Code. The system of rights of claim of the German Civil Code alsoprovides operability for the appliance of the method of analyzing the basis of rightsof claim.As a mode of thinking, the method of analyzing the basis of rights of claim hasthe general characteristics of legal thinking, normative, procedural and neutrality. Italso has its own characteristics. Firstly, it is a systemic thinking. Secondly, find the lawaccording to the rights of claim and referee a case by the judicial syllogism.Compared with the method of analyzing legal relationships, it has the followingadvantages: firstly, it respects the free will of the parties; secondly, it is economic;thirdly, it promotes the legal professionals developing a careful legal thinking process.Fourthly, it can ensure the validity of referee. Fifthly, it meets practice needs. Since the Late Qing Dynasty, our country has indirectly received the concepts,principles, systems and theories of the German Civil Code for more than100years.However, these things have been integrated into Chinas legislative, judicial, legaleducation and theoretical studies. We have the material foundation to learn themethod of analyzing the basis of rights of claim. So, we can build the system of theCivil Code in China, improve Chinas legal education, cultivate legal professionals’ wayof thinking and make the verdict more rational from the point of the method ofanalyzing the basis of rights of claim. It can help legal professionals unify their legalthinking to reach a consensus on the legal.Our country has successfully constructed a legal system of socialism withChinese characteristics. We must ensure the good functioning of the judicial so as toachieve the goal of rule of law. However, the Legal Professionals’ good and unifiedlegal thinking is a prerequisite for the good functioning of the judicial. As a scholarhas said,”the rule of law is a way of thinking”. Only the legal professionals have thesame legal way of thinking can realize the rule of law. It can be said that the identityof the legal thinking is the basis of the rule of law. Currently, we actively build asocialist country under the rule of law. Exploring the method of analyzing the basis ofrights of claim has a role in promoting Chinas judicial reform, legislation, lawenforcement, legal education and so on.