Research On Normative Separation Theory

The objects of legal norms can be divided into two categories: one is the public,the other is the judges and judicial staff.The general public is or is not a certain behavior under the guidance of the code of conduct,and the referee will make a positive or negative evaluation in favor of one side or against the other according to the code of conduct.Therefore,from the perspective of different audiences,legal norms can be divided into behavioral norms and judgment norms,which is the differentiation theory of behavioral norms and judgment norms.The distinction stems from a famous thought experiment,the "sound isolation hypothesis",which imagines two completely closed and mutually exclusive Chambers,with ordinary citizens on one side hearing only the rules of conduct and a group of judges on the other side hearing only the rules of judgment.There are two kinds of arguments about this distinction in academic circles.Some scholars think that legal norms are only the norms of judgment or just the norms of conduct,while others insist that legal norms are both the norms of conduct and the norms of judgment.However,in judicial practice,the concrete relationship between the code of conduct and the code of judgment is manifested in three forms: indiscriminately combining together,having mutual isolation and mutual influence,and having conflict.Based on the development of information network,the probability of the realization of "sound isolation hypothesis" in real life is almost zero,but why does such phenomenon generally exist in judicial practice? The explanation is: the different interpretation of legal norms by different audiences,the inevitable ambiguity and uncertainty of legal norms,and the complexity and duality of legal norms.Generally,we assume that the code of conduct and the referee's code are consistent in content,but this is not the case.There will be differences between the legal norms as the rules of conduct and the legal norms of judicial personnel as the rules of judgment.There is no logical consistency between the codes of conduct and the rules of judgment.At least for some legal norms,there is only the code of conduct or the rules of judgment.Therefore,the view of "one body and two sides" should be amended.Although the distinction between the code of conduct and the code of judgment is faced with two difficulties: one is that it is impossible to prevent voice leakage in the real society;The second is that the criteria are hard to determine.This does not mean,however,that it is impractical to distinguish between the two.The result of ignoring this notion is an oversimplification of the relationship between the two norms.The failure of laws to distinguish between the two norms in their formulation creates two difficulties: first,the codes of conduct and the codes of adjudication cannot be effectively formulated and codified to achieve their main functions;Secondly,it is easy to produce ambiguity when evaluating the result of support or opposition after the event,and this ambiguity has an adverse effect on the guiding function of the code of conduct.The relative independence of the code of conduct and the complexity of the relationship between them tells us that the differences between the two rules must be taken seriously.Behavior norms and the referee standard to distinguish the theory of meaning is more than simply to distinguish between them,more important is to break the code of conduct and the specification in the logical consistency,admitted that both might actually separated,helps us to explain and solve legal norms applicable,and problems encountered in the process of legal application.In fact,there are special occasions,we don't allow transfer to the general public,not known to the general public to judge standard,using the strategy of "selective transmission" create "sound isolation",on the one hand,to prevent the judge because of too much to consider policy interests or social value and ignore the case justice,on the one hand,reduce the general public use know ahead of time the referee to circumvent the law should be given punishment or negative evaluation of risk.Selective transmission is not incompatible with the rule of law,and in some cases can mitigate or replace the violent means often used by law.It turns out that standard arguments in favor of the rule of law do not preclude selective transmission.From the perspective of the research in the two fields of civil law and criminal law,the application value of the theory of the distinction between the code of conduct and the code of judgment is much more than that.The study of the theory is helpful in improving the acceptability of the judgment results,sorting out the system of legal norms,and deepening the reform of the judicial system.