{"title":"法律是如何实施的?基于中国一个司法案例的社会学分析","authors":"Jialiang Huang","doi":"10.2753/CSA0009-4625410202","DOIUrl":null,"url":null,"abstract":"The argument over formalism and instrumentalism has always been a major issue in Western jurisprudence (Bourdieu 2002). They are the two fundamental perspectives from which the law is studied in academic circles. In formalist jurisprudence, the law is deemed to be a fully independent and autonomous system whose development can be understood only through its “intrinsic power”; legal philosophies and legal conduct have absolute independence and are never determined by social factors. Representative of this philosophy is the analytical positivist jurisprudence school that came into being in the latter half of the nineteenth century. Adherents “try to separate values from the scope of jurisprudent research and restrict the tasks of jurisprudence to the analysis and anatomy of actual law” (Bodenheimer 1999, 116) and mainly focus on attempts to “analyze legal terms and study the interrelationships between legal propositions in terms of logic” (Stone 1961, 31). As John Austin believed, jurisprudence is an independent and self-contained theory about actual law and “what it is concerned","PeriodicalId":84447,"journal":{"name":"Chinese sociology and anthropology","volume":"111 1","pages":"41 - 77"},"PeriodicalIF":0.0000,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"2","resultStr":"{\"title\":\"How Are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China\",\"authors\":\"Jialiang Huang\",\"doi\":\"10.2753/CSA0009-4625410202\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"The argument over formalism and instrumentalism has always been a major issue in Western jurisprudence (Bourdieu 2002). They are the two fundamental perspectives from which the law is studied in academic circles. In formalist jurisprudence, the law is deemed to be a fully independent and autonomous system whose development can be understood only through its “intrinsic power”; legal philosophies and legal conduct have absolute independence and are never determined by social factors. Representative of this philosophy is the analytical positivist jurisprudence school that came into being in the latter half of the nineteenth century. Adherents “try to separate values from the scope of jurisprudent research and restrict the tasks of jurisprudence to the analysis and anatomy of actual law” (Bodenheimer 1999, 116) and mainly focus on attempts to “analyze legal terms and study the interrelationships between legal propositions in terms of logic” (Stone 1961, 31). As John Austin believed, jurisprudence is an independent and self-contained theory about actual law and “what it is concerned\",\"PeriodicalId\":84447,\"journal\":{\"name\":\"Chinese sociology and anthropology\",\"volume\":\"111 1\",\"pages\":\"41 - 77\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"2008-12-01\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"2\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Chinese sociology and anthropology\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.2753/CSA0009-4625410202\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"\",\"JCRName\":\"\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Chinese sociology and anthropology","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.2753/CSA0009-4625410202","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
How Are Laws Practiced? A Sociological Analysis Based on a Judicial Case in China
The argument over formalism and instrumentalism has always been a major issue in Western jurisprudence (Bourdieu 2002). They are the two fundamental perspectives from which the law is studied in academic circles. In formalist jurisprudence, the law is deemed to be a fully independent and autonomous system whose development can be understood only through its “intrinsic power”; legal philosophies and legal conduct have absolute independence and are never determined by social factors. Representative of this philosophy is the analytical positivist jurisprudence school that came into being in the latter half of the nineteenth century. Adherents “try to separate values from the scope of jurisprudent research and restrict the tasks of jurisprudence to the analysis and anatomy of actual law” (Bodenheimer 1999, 116) and mainly focus on attempts to “analyze legal terms and study the interrelationships between legal propositions in terms of logic” (Stone 1961, 31). As John Austin believed, jurisprudence is an independent and self-contained theory about actual law and “what it is concerned