Black Case Sociological Theoretical Research

The vigorous development of Western Legal Sociology has had a great impact on Black,but Black does not agree with the existing theories and research methods of it.He hopes to create a pure sociology of law that only investigates the basic legal facts.Sociology of Cases is the result of Black applying his Pure Sociology of Law to judicial practice.It belongs to the microsociology of law.In terms of the relationship between Sociology of Cases and other legal thoughts,Sociology of Cases abandons the research methods advocated by Natural Law and Historical Law.But it has learned a lot from Analytical Law.Black emphasizes that we need to be value-neutral and only need to conduct the research on legal facts.Both Sociology of Cases and Legal Realism emphasize the importance of behavior,agreeing that the law is uncertain.They advocate that the outcome of a case cannot be predicted and explained through rules and principles.However,different understandings of objectivity and scientific also lead to fundamental differences between Sociology of Cases and Legal Realism.Legal Realism pursuits objectivity and believes that scientific understanding and objective value judgment are consistent to some extent while Sociology of Cases emphasizes scientific and argues that objective value is not completely related to legal science.Black's Sociology of Cases has a certain tendency of Behavioral Jurisprudence,but it is purer and more extreme.Behavioral Jurisprudence emphasizes that the real behavior is what the real law is.But Sociology of Cases mainly refers to the behavior of law it self.Sociology of Cases adopts many positivist methods in the research process.Its philosophical foundation can be traced back to Positivism.On another way,it should be classified as a branch of American Legal Sociology.Research on the source and flow will help to further understand the in-depth content of Sociology of Cases.Before the detailed research,Black introduced a concept as “behavior” and reset the concept of “law”,emphasizing that the law also has its operational behavior.The law is a kind of social control,which can only be carried out by the government on citizens.Its restrictive objects are mainly illegal acts in real life.Laws and legal styles present different states under different circumstances.Their quantity and styles will change due to differences in various aspects of social life.Through observing the changes,we can find that there are certain disciplines in the operation of the law.As a result,changes in quantity of law and legal styles under different circumstances can be reasonably predicted and explained.The social characteristics of the parties involved in the case determine the social structure of the case,and the social structure of the case determines the final outcome.On the premise that the case is same,the justice differential treatment arises precisely because of the different social structures.Variation of law mainly include three basic functions: the quantity of law,the strength of the case and the quantity of discrimination.Through the disciplines of legal operation,combined with the social structure of the case,the formation process of the variation of law can be predicted and explained.The reasons for justice differential treatments can also be explained reasonably.In order to reduce justice differential treatments,Black said that we can start from three aspects: joining a legal co-operative association,the desocialization of law and the delegalization of society.Judging from some examples in the United States and Japan,these measures are feasible and have a positive impact on the reduction of justice differential treatment.Although Black's Sociological of Cases cannot be fully applied to our country,it still has great significance for our country's judicial reform.Drawing lessons from those three approaches proposed by Black,we can also make relevant efforts to promote the reduction of justice differential treatment.First of all,it seems that it is feasible to establish a legal co-operative association specially at present,but we can look for the organizations with the character of legal co-operative associations from the existing legal system.Promoting its function of association instead of the direct establishment of a legal co-operative association.For example,legal aid centers,insurance companies and owners' committees can all play the role of legal co-operative associations to a certain extent.They can provide timely assistance when needed and help individual members to participate in litigation as an organization when necessary.From this we can change the social structure of cases and reduce justice differential treatments.Secondly,it is unrealistic to completely eliminate the legal differences caused by different social structures,but the impacts of the social structure of cases can be weakened as much as possible.On the judge's side,judges who know nothing about both parties in the case should be selected.The court can also use post system to promote the elitism of judges.Additionally,judges should establish the concept of equal treatment of both parties.On the court's side,social information unrelated to the judgment should be concealed before trial.During the trial,both parties,witnesses and lawyers are required to dress uniformly and use the same language as much as possible.Moreover,judges are required to make similar judgments on similar cases.After the trial,the transcripts of the deliberations of the collegiate panel are published within a certain range.Therefore,the desocialization of courts can be achieved partly.Finally,we can vigorously develop a mediation system to replace legal means to resolve disputes.Law can not resolve all disputes and mediation has its unique system advantages.Combining legal means with mediation methods can establish a better dispute resolution system.At present,there are mediation systems such as people's mediation,lawyer's mediation and notarial mediation in our country.People's mediation has been regulated by a certain law,but lawyer's mediation and notarial mediation only exist in some official documents.While understanding the advantages of these mediation systems,it is also necessary to recognize the problems arising during the operation and focus on how to solve these problems.