The Study On Responsive Law Of Berkeley School

The Berkeley School rose during the Movement of Law and Society in United States in1960’s. As a branch of sociology of law, Berkeley School consisted of scholars of the Center for Law and Society Research in University of California-Berkeley, among which Philip Selznick and Philippe Nonet had been the two typical characters. The school was established in a turbulent time of American society, and gained its fame due to proposing to response the need of social changes by reforming the rule of law. The responsive law was created as a legal pattern under such advocacy.As the formal rationalization crisis that the law faced, Berkeley School advocated that the research method of natural law should be introduced into sociology of law. Such method attached importance to the value-guidance in legal reasoning, propose to construct an idealized legal order---the Responsive Law pattern---that combining civilization, right standard, duty restriction through conversation, civil participation, promotion of legal implementation on the foundation of due process. On such basis, Berkeley School renewed the classification of law as Repressive Law, Autonomous Law and Responsive Law. As a tool of political governance, Repressive Law is characterized by political-legal integration, intend to use compulsory force limitless. Autonomous Law embodied the rule of law, which indicated political-legal separation, due process and judicial independence. Responsive Law mentioned the defects of Autonomous Law practice, claimed to pursue substantive justice on the basis of procedural justice.Berkeley School had been one of leading roles in American sociology of law for its doctrine and methods. The Responsive Law had also drawn wide attention and had been a theoretical reference to social&legal reform of America in1960’s. During the process of rule of law construction since the Reform and Opening-up, Berkeley Law’s views also have been introduced and studied by Chinese jurists. Base on such background, this thesis intends to a re-examination on Berkeley School on the foundation of existing literatures, which aims at dissecting the essence and institutional design of Responsive law, and reflecting on its feasibility.Apart from introduction and conclusion, the main part of this paper is divided into five sections. The first section introduces the theoretical background of Berkeley School. Through this way can we analyze its macroscopic standpoint upon the legal ontology and legal methodology. The Responsive Law is a vital part of sociology of law of Berkeley Law, a research on which has to lay its foundation on the understanding of legal view and legal methodology.The second section introduces the famous category on law. Berkeley School classifies law into Repressive Law, Autonomous Law and Responsive Law. This part takes a close examination on the concept, character and logical relation between the three types of law. A study on Responsive Law cannot perform without an analysis on other two types of law.The third section is critical in this thesis. In this part, an overall analysis is held on the content of Responsive Law. First of all, the "end" has been the key concept in Responsive legal order, by which Berkeley School claimed its legal naturalism and demonstrated the reason why they laid emphasis on value and ethics of social responsibility. Secondly, the Responsive Law "responds" to social reform through enlarging the scope of civil participation and promoting capability of legal institution. Lastly, the idea of Responsive Law system is to build civilized social order by "adjustment", to use law as a tool of social management and be blended into social system construction of responsive type.The forth section contains a reflection on Responsive Law. This part examines the shortcoming of Responsive Law revealed in its implementation and introduces solution raised by Berkeley Law.Although the Responsive Law theory of Berkeley School has its limit in theoretical study and practice, the idea it shows is full of humanistic care. The idea becomes a lofty dream of rule of law, in which the pursue of justice has became a vital value in current rule of law construction. All of these decides Berkeley School’s theory has its own value. The theory of Berkeley school provides a methodology revelation for the study of sociology of law, and the value guidelines for the practice of Autonomous Law.