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Structural theory of legal norms

2019-12-23 来源: 51Due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- Structural theory of legal norms,供大家参考学习,这篇论文讨论了法律规范结构理论。从学术理论上讲,法律规范是因解读和分析法律的规范性而形成的法学基本概念。律规范的结构,是指法律规则的组成要素及其关系。目前,法学界关于法律规范结构的观点主要有:传统三要素说、二要素说、四要素说、制裁与奖励说以及新三要素说。新三要素说克服了旧三要素说和二要素说存在的主要缺陷,但仍未脱离传统的分析模式。

Structural theory of legal norm,法律规范结构理论,assignment代写,paper代写,北美作业代写

Legal norms are the basic concepts in the field of legal theory and the basic problems in the study of ontology, for which various theories emerge one after another, such as "traditional three-element theory", "two-element theory", "new three-element theory" and so on. Although the "new three elements theory" occupies a general position in the academic circle, it also has certain limitations, that is, it lays stress on static analysis and obligation stipulation.

In academic theory, legal norms are the basic concepts of law formed by the interpretation and analysis of the norms of law. In our country, the law of structure in different periods have different understanding, such as the three elements of "traditional", "said two elements" and the three elements of the "new" and so on, but basically inherited analysis model, Hans kelsen's only experienced from the initial acceptance to the later part of the correction in order to enhance the explanatory power of the process, such as "sanctions" replaced by "legal consequence", etc. In addition to the above points about legal norms, marxist jurisprudence's views on the nature of law are also very important and have great influence and inspiration on our understanding of the structure of legal norms.

The structure of legal norms refers to the constituent elements of legal rules and their relations. At present, the views of the legal circle on the structure of legal norms mainly include: "traditional three-element theory", "two-element theory", "four-element theory", "sanction and reward theory" and "new three-element theory". Some views are detailed as follows:

Although the "traditional three elements theory" is concise and to the point, it has a strong logic, but behind it is a kind of national standard and class theory of law concept proposition, law is considered as a kind of tool of class rule and social governance, which will cause a series of problems. For example, from the modern point of view, this kind of state-oriented thought will lead to the ambiguity of legal status. Since this kind of legal view of power must always reflect the will of the state, is the law completely equivalent to the power of the state? What should the state do if the "assumed" conditions are met? Is it to sanction according to law, or to use the power of the state to punish? In addition, the most obvious manifestation of this overpraise of state coercive power is the obsession with "sanctions", which obviously ignores another legal consequence, that is, rewards. Therefore, the "traditional three-factor theory" has certain historical limitations.

The "two-element theory" changes the "sanction" in the "three-element theory" to "legal consequences", and also cancels the "assumed" element in the three elements, and advocates that the logical structure of legal norms or rules is the behavior pattern and legal consequences, or the applicable conditions and legal consequences. There are two main reasons for cancellation. The first is that "there is often no presumption in the actual law, or it is provided for in the general law, or it is included in the processing part... Assumptions seem redundant. The second point is that "assumption", as the applicable condition or limit of the mode of conduct, is inseparable from the mode of conduct. That is to say that patterns of behavior should have assumed parts. Compared with the traditional three elements, two elements not only think "legal consequence" should include affirmative legal consequence and negative legal consequences, as compared with "sanctions" more reasonable, and behavior patterns are classified, including model, should be, should not three, respectively gives rights, set the positive and negative obligations, but in terms of objective, two elements will assume as part of the behavior patterns, it will largely reduce the clear applicability of law.

Compared with the traditional three-factor theory, the "new three-factor theory" is not limited to the narrow element of "sanctions" and advocates the duality of legal consequences. Compared with the "two-factor theory", it also advocates the independent structure status of "assumption" and clarifies the applicable conditions of legal norms. The "new three elements theory" advocates that any legal norm consists of three parts: conditions, modes and consequences. On the basis of inheriting the "two-element theory", the "new three-element theory" holds that "assumption" should be given independent structural status. In addition, the "new three elements theory" also makes a detailed classification of assumptions, behavior patterns and legal consequences. It is considered that the assumption should contain two kinds: the applicable conditions of legal rules, that is, when, where and to whom; The behavior condition of the behavior subject includes the qualification constitution of the behavior subject and the situation condition of the behavior. Behavior patterns are divided into two categories: power behavior patterns, also known as the mode of availability; The mode of compulsory behavior includes the mode of should-do and the mode of not-do. There are two types of legal consequences, positive and negative.

Although the new three elements theory has made some progress, it still has some problems. For example, wei zhixun believes that although this proposition overcomes the main defects of the "old three-factor theory" and "two-factor theory", it still does not break away from the traditional analysis model. Firstly, the theory explains the constitution of legal norms from the technical perspective of law operation rather than from the essential structure, and cannot be fundamentally distinguished from other social norms. Second, it reflects dominant thinking and treats the masses as objects to be governed. In fact, the process of achieving legal order is the interaction between legislators, law enforcers, judicial officials and all the people. Therefore, neither this theory nor the "traditional three-element theory" nor the "two-element theory" can truly and comprehensively reflect the true nature of legal practice and legal order. In addition, Mr. Xie hui argues that the "behavior mode" element in the theory should be changed to "behavior orientation". Because the former refers to the obligation rules, but there are also some optional rights rules in the legal rules, which are difficult to be generalized by the word "mode". In addition, some scholars believe that the theory has some problems such as logic incoherence and type simplification, all of which more or less reflect the shortcomings and shortcomings of the "new three elements theory".

As for the limitation of "new three elements", the author thinks it can be summarized as two points. The second is that compared with rights, more emphasis is placed on obligations. Therefore, we should treat the "new three elements theory" objectively, take the academic exploration spirit of "seeking knowledge for knowledge's sake", while recognizing its advantages, pay attention to the analysis of its limitations, constantly update knowledge, improve relevant theories, and give correct guidance to legal practice.

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