No Judgment, No Legal

The sources of Law is a very important concept in Legal Realism. in a sense, it isjust because the existence of the unique understanding, Legal Realism can form itsown special legal concept. John Chipman Gray, one of the founders of Legal Realismfrom America, put forward the theory of Sources of Law uniquely in his writing " TheNature and Sources of the Law ", which is regarded as a classics of Legal Realism.As a famous American jurist, John Chipman Gray’s theory of sources of law ishighly influential. In this book, Gray made a distinction between law and thesources of law."No judgment, no legal" is the core concept of Gray law, thus thestatute, judicial precedent, habit, expert advice, moral principles are not law, but thesources of law. This book also parses Gray’s theory of law concept and the source oflaw in detail, as well as the process of distinguishing law from the sources of law. Butin the process, Gray just made a simple distinction between the law and the sources ofthe laws with not any basis. He did not explain clearly whether the sources of law hadany binding force. By analyzing " The nature and sources of the law " in detail, thisthesis attempts to explore Gray’s theory of the sources of law in a new vision. It isvery important for the understanding and grasp of the legal concept of Gray. It alsohas theoretical significance for the whole Legal Realism.Besides the introduction and conclusion, this thesis is divided into the followingfour parts:The first part distinguishes Gray law and the sources of law. By analyzing andcommenting on the existing three legal definitions at that time, namely Austen’s law isthe command of the sovereign, the Savigny law is national consciousness and thejudge is the discoverer of the law, Gray drew his own law concept. He suggested thatlaw is a general rule of law which is released by the court to determine a party’s rightsand obligations. The previously existing statutes, judicial precedents, habits, expertadvice, moral principles etc., are only the source of law. Subsequently, we furtherdeepen the understanding of concept of Gray law by distinguishing law from the sources of law and clarifying some easy-understanding of the concept of Gray law.Finally, we discuss the basis of the distinction between law and the sources of law.The second part combines different types of the sources of law in detail. Thesources of law contains only five species according to Gray, and they are notsufficient without some certain conditions to be the sources of law. Additionally, theso-called source of law by Gray does not exist any level of affiliation, They are in thesame status, and they are often not indiscriminate mixing together in theadministration of justice of judge.The third part, also the most important part of this article, focuses on whether thesources of law has any legal binding. In order to grasp this problem more clearly, Wefirst analyze the concept combining with Gray’s remarks, drawing that Gray stands onthe ambiguous stance about the problem whether the sources of law has any legalbinding. Then we learn more about the sources of law by Gray combining with theview of legal realism, obtaining the inevitability of difference of the latter legalrealism on this problem.In the fourth part, we introduce some different opinions that disagree with Gray’stheory of sources of law. It is mainly because the difficulty of justifying that a lot ofjudges criticize his viewpoint, Kelsen and Hart are the most representatives, accordingto the specification of level system and the theory of social rules respectively. Thecommon denominator of their criticisms is that Gray’s Law concept is too narrow. Thesources of law is the law itself. We will make a simple analysis and comment on thetheory of the sources of law from the whole content of " The nature and sources of thelaw ".Through the analysis, we conclude that the so-called law and sources of law aredifferent from each other. They have strict distinctions with basis. Gray’s theory ofsources of law has a great influence, however, there are also a lot of shortcomings.The biggest flaw is ambiguous stance on the problem about its legal binding. AsGray’s theory is difficult to prove, Kelsen and Hart’s criticisms make the flaws andshortcomings of his theory more prominent. Thus, Gray’s theory of sources of lawstands the test only by expand the extension of the concept without destruction to the its maintenance of legal positivism, and keeping its original premise.