On whether the dominant thinking of China’s rule of law is dialectics or logic

Since the Chinese people realized that China must take the path of rule of law, there have been various discussions and debates about how China should take the path of rule of law. Looking at these discussions and debates, the exploration can be roughly divided into two directions. One is to seek a path to realize the rule of law outside the law, and the other is to explore China's path to the rule of law from the perspective of the law itself. However, whether we explore the path to realizing the rule of law from within the law or outside the law, we need to rely on certain thinking. This article attempts to start from the field of thinking and focus on analyzing and demonstrating whether the dominant thinking of China's rule of law is dialectics or logic, with a view to serving the practice of China's rule of law. [Keywords]: Rule of law, legal thinking, dialectical thinking, logical thinking. As the academic community continues to deepen the discussion on rule of law issues, many scholars have realized that “the rule of law issues are not only generated by systems and norms, but also coexist with institutional norms. Legal thinking." As Professor Zheng Chengliang said: "The rule of law is essentially a way of thinking." He further elaborated: "The rule of law certainly depends on a series of complex conditions, but as far as its most direct conditions are concerned, There must be a social way of thinking that is compatible with it, that is, only when people can think about problems in accordance with the concept of the rule of law consciously rather than passively, often rather than accidentally, will there be a universal consensus consistent with the concept of the rule of law. Behavior." However, what kind of thinking is this kind of legal thinking that serves the rule of law? Although most scholars believe that it should mainly be a kind of logical thinking, it does not have absolute dominance. This is mainly due to the influence of our country's traditional way of thinking, as well as the inertia of ideological indoctrination in the ideological field after the founding of the People's Republic of China, and the lack of understanding of this kind of logical thinking. In addition, it is also influenced by the western postmodern trend of thought on traditional thinking. The influence of logical criticism has made some people consciously or unconsciously doubt this assertion that logical thinking dominates. Some people even put forward the fallacy that dialectical thinking is the dominant thinking in China's rule of law. This article is aimed at this current situation, based on clarifying the concepts of the rule of law, legal thinking, logical thinking, and dialectical thinking, focusing on analyzing and demonstrating the relationship between logical thinking and the rule of law, and the relationship between dialectical thinking and the rule of law, and finally concludes that the dominance of the rule of law Thinking to logical conclusions. 1. Concept definition Concept is a tool or symbol that facilitates people's communication based on the essence and characteristics of objective things that people gradually form in the long-term production and life process. It is formed based on the use of abstract thinking to make abstract generalizations. Due to differences in people's cognitive abilities and abstract thinking, people's conceptual definitions of the same thing are also different. Therefore, the definition of relevant concepts of this issue will not only facilitate the article's in-depth analysis and demonstration of the issue, but also facilitate people's understanding and communication of the content discussed in this article. (1) Rule of law Regarding the definition of the concept of rule of law, we can see that the concept of rule of law has experienced a process of continuous development and enrichment. During its development process, it is often affected by factors such as the social environment and the natural environment. The definition of the rule of law is different in different countries and different historical periods. For example, the ancient Greek philosopher Aristotle defined the rule of law in his book "Politics" as: Law is universally observed and good law. British jurist Dicey defined the rule of law as: first, the law has supreme authority that transcends any arbitrary power, including the government’s broad discretion; second, any citizen must obey the state’s laws implemented in general courts. General law; third, power is not based on abstract constitutional documents, but on actual court decisions. However, no matter how the definition of the rule of law develops and evolves, and what forms of rhetoric scholars use to explain it, the basic characteristics of the rule of law, "the supremacy of law," and the core values ​​of the rule of law, such as "power restriction" and "guaranteeing freedom," cannot be changed. "Law supremacy" is the basic principle of both classical and modern rule of law. It is an institutional form and legal spirit. It means that in concept, legal authority and status are above all else and are sacrosanct. "Power restriction" is one of the core values ​​of the rule of law. Regardless of the history or the actual development of the rule of law in various countries, the political foundation of a country ruled by law is, first, a democratic political system, and second, the reasonable allocation of state power. According to Montesquieu, the fundamental issue of implementing the rule of law is to solve the problem of allocation of state power. The issue of the allocation of state power is the core issue of the rule of law. The allocation of state power includes the reasonable division of labor and effective restrictions on state power. "Protecting freedom" is also one of the core values ​​of the rule of law. Freedom is the basic human right of citizens. Only when citizens truly enjoy the right to freedom can they realize other rights. Therefore, "protecting freedom" is an extremely important value concept in a society ruled by law. Based on this and combined with my country's national conditions, the author believes that the rule of law can be defined as one that takes the supremacy of law as its basic concept, is based on the reasonable allocation of rights, aims to protect basic human rights such as freedom, and relies on the universal implementation of good laws as a means to socialize. management style. (2) Legal thinking The academic community pays more attention to the research of legal thinking, and the results in this area are also relatively rich, which is reflected in the definition of legal thinking. We can see that there are many definitions of legal thinking.

Generally speaking, people generally have the following understandings of what legal thinking is: 1. Legal thinking is the reflection, understanding and thinking of legal phenomena through the human brain (nervous system). As Li Shuying pointed out: Thinking is the human brain’s understanding and thinking of existence. Legal thinking is the reflection, understanding and thinking of legal phenomena through the human brain (nervous system). 2. Legal thinking is the process in which legal professionals (the legal profession’s entire body) use legal knowledge to analyze, judge and draw conclusions on legal issues. For example, Zhou Xiaochun, Li Baofu, Guo Rucun, etc. all define or use legal thinking in this sense. Zhou Xiaochun pointed out that the so-called professional legal thinking refers to the cognitive process of using basic legal theories, professional terminology, professional logical analysis, and judgment of problems. We can see that Zhou Wen limits the subject of legal thinking, that is, he no longer defines legal thinking as a pan-subjective definition, but only limits it to the legal profession. 3. Define legal thinking from the functional perspective of legal thinking, that is, define legal thinking as a method to achieve the rule of law. Such as Cong Tao and Cao Jie. Legal thinking is the best step or method to integrate laws, facts, methods, etc. to achieve the rule of law. 4. Define legal thinking from the perspective of legal thinking, such as Zheng Chengliang, Chen Jinzhao, etc. Zheng Chengliang is one of the earliest scholars in China to study legal thinking. He believes that the rule of law is a way of thinking. “The so-called legal thinking method is to observe and analyze according to the logic of the law (including legal norms, principles and spirit). and a way of thinking to solve social problems.” He believes that legal thinking should “think and judge all controversial behaviors, claims, interests and relationships around legality and illegality.” 5. Define legal thinking from the perspective of the combination of legal thinking and legal thinking methods. Ru Kanhongguo understands legal thinking from this perspective. "Legal thinking refers to the understanding and attitude of people living under the legal system towards the law, as well as the way people think and understand society from the legal standpoint, and also includes how people use the law to solve problems in this process. Specific methods” “When legal thinking is used as a way of thinking, one end of it is connected to the metaphysical level of the law, and to the cultural connotation, character and spiritual needs of the law and legal people; when legal thinking is used as a method of thinking, its other end is Connecting the metaphysical level of the law, it makes the law more accessible in the exploration of legal methods such as explanation, reasoning, and argumentation. See Zhou Xiaochun: "Judge Professional Legal Thinking: The Transition Bridge from Professional Judges to Knowledge-based Judges," published in "Chinese Lawyers" 2000 No. 12 Legal thinking should include two aspects: legal thinking mode and legal thinking method. Legal thinking is the integration of legal thinking mode and legal thinking method, rather than a bridge between the two. "Legal thinking is the integration of legal thinking methods by the subject. The process of solving specific problems with legal thinking methods is also a process of re-understanding and re-grasping the law. Among them, legal thinking methods are represented by legal thinking perspectives, positions, models, and thinking habits and traditions, etc., which determine the direction of thinking. Legal thinking methods are the tools used by subjects to solve legal problems. There are two main types. Level, that is, operational methods as thinking processes, such as conviction and sentencing in criminal law, and methods as theoretical tools, such as legal interpretation, legal reasoning, legal argumentation, and value measurement. ” In summary, the author believes that Fan Chunying’s definition of legal thinking is more appropriate. Legal thinking should first be a way of thinking, which has the attributes common to all ways of thinking and at the same time has its particularity, that is, legality, performance It is the perspective, stance, model of legal thinking, as well as thinking habits and traditions, etc., which determines the direction of thinking; secondly, it should be a thinking method, which mainly refers to its usefulness as a method for people to deal with legal issues. Nature is mainly used as an operational method of thinking process, such as conviction and sentencing in criminal law, and as a theoretical tool, such as legal interpretation, legal reasoning, legal argumentation and value measurement. (3) Logical thinking in its literal meaning. Logical thinking is a combination of the two words logic and thinking. Thinking is the essential attribute of this concept, and logic embodies the unique characteristics of this concept. Therefore, if you want to understand what logical thinking is, you must first understand it. What is logic? There are many definitions of logic. The dictionary defines logic as a kind of abstract thinking of people, which is the thinking process of people to understand and distinguish the objective world through concepts, judgments, reasoning, and arguments. It was developed from logic by American scholar John Dewey. From this perspective, it is believed that logic is a science formed on the basis of natural selection of correct methods and rational research through people's long-term practice of all methods. It is believed that logic is a basic criterion that people must abide by in their thinking. One of the most commonly used methods, whether in theory or in practice, conclusions must be drawn from three key areas of legal thinking: legal acquisition, justification of judgments, and concepts. In the construction of the system, the scholar deduced that the logic in law must go through three different stages and three different senses of inference, namely: factual reasoning, legal reasoning, and judgment reasoning. In summary, it is combined with the above discussion of legal thinking. The author believes that logical thinking is a thinking process that uses various abstract thinking methods to achieve the purpose of understanding and transforming the world.

It mainly has two characteristics. First, it is a kind of thinking, which is the process of people’s understanding or transformation of objective things through the brain; second, it requires the comprehensive use of various abstract thinking methods (such as concepts, judgments, reasoning, arguments, etc.) , so that people can form certain conclusions in the thinking process. (4) Dialectical thinking Engels believed: "The so-called subjective dialectics, that is, dialectical thinking, is nothing but a reflection of the movement of oppositions prevalent everywhere in nature." Gong Jiahuai defined "dialectical thinking" from two aspects: understanding the world and transforming the world. It is defined as: Dialectical thinking is a reflection of the interconnection, interdependence, mutual restriction, interaction and movement changes between objective things. Dialectical thinking reflects things proactively, purposefully, predictably and creatively. ” and “Dialectical thinking is defined as: Dialectical thinking is the thinking of human beings to understand and transform the objective world.” The author believes that dialectical thinking is a kind of thinking based on dialectics, so dialectical thinking has the basic content of dialectics. Connection, contradiction, movement, change, development. The most basic characteristic of dialectical thinking is to regard the object of study as a whole, from the movement of its internal contradictions. Fan Chunying: "Research on Legal Thinking" Shandong University Doctoral Thesis, October 2008, No. 24 See [US] John Dewey: " "Logical Methods and Law" translated by Sun Xinqiang, published in the 2011 first issue of "National People's Congress Law Review". People's Publishing House, 1972 edition, pp. 543, to examine the changes and interconnections in all aspects, in order to understand the object systematically and completely in essence. In addition, dialectical thinking is also a combination of universal laws formed by the induction and summary of universal experience, which itself has consistency and circularity. The author believes that from the perspective of the characteristics of dialectical thinking, it is more inclined to guide people to understand things comprehensively and systematically. However, in practice, its role in how people should transform objective things is often not as obvious and direct as logical thinking. 2. Rule of law, dialectical thinking, and logical thinking. Based on the accurate definition of the concepts of rule of law and dialectical thinking above, the following will focus on analyzing and demonstrating the relationship between the rule of law and dialectical thinking, and the relationship between the rule of law and logical thinking. In this part, the author will focus on the following four issues to analyze and demonstrate the relationship between the rule of law, dialectical thinking, and logical thinking. First, are dialectical thinking and logical thinking a kind of legal thinking? Second, which of dialectical thinking and logical thinking is the dominant thinking in China's current rule of law? (1) Whether dialectical thinking and logical thinking are a kind of legal thinking. Legal thinking is of self-evident significance for the realization of the rule of law. Therefore, to demonstrate whether a kind of thinking is thinking that serves the rule of law and whether it is the dominant thinking of the rule of law, first What needs to be demonstrated is whether it is a kind of legal thinking. At this point, the author attempts to make an argument from the perspective of conceptual definition, combined with the above definitions of dialectical thinking and legal thinking. Dialectical thinking is a kind of thinking based on dialectics. It contains the basic contents of dialectics, namely connection, contradiction, movement, change and development. And this also determines the characteristics of dialectical thinking: relativity, movement, and subjectivity. This is contrary to the characteristics of legal thinking as a way of thinking, that is, legality: absoluteness, stability, and objectivity. In terms of absoluteness, legal thinking that serves the rule of law requires people to adhere to the absolute authority of the law in all aspects of social production and life; while the things advocated by dialectical thinking are things in contradiction, and things are in a certain system of contradictions. This system includes the primary and secondary aspects of contradictions within things and the primary and secondary contradictions outside things. Therefore, things are not absolute but relative. This is exactly contradictory to the supremacy of law and the absolute authority of law advocated by legal thinking that serves the rule of law. In terms of stability, legal thinking first conducts analysis and demonstration based on the stability of legal rules, and can roughly arrive at a stable expectation, which meets people's psychological and rational needs while also saving social costs, thus achieving the requirements of the rule of law. The goals and values ​​pursued and the rule of law can be consolidated and developed; however, what dialectical thinking advocates is that things are moving things, the movement of things is absolute, and stillness is only a special case of movement. This movement Dialectical thinking will not be able to meet people's needs for legal stability, and will be an obstacle to the realization of the rule of law. In terms of objectivity, legal thinking, as a method of thinking, is a method of reasoning and demonstrating on the basis of existing objective facts through the comprehensive use of inherent abstract thinking, and finally reaches a relatively objective conclusion, which has a strong objectivity; and dialectical thinking, although its advocates define it as human beings' thinking to understand and transform the objective world, in fact, due to the lack of objective methods, this kind of thinking has a strong subjectivity, and the results gained from this kind of thinking The conclusion is also highly subjective, which is contrary to the objectivity of legal thinking and the rule of law's pursuit of objectivity in results. To sum up, the author believes that dialectical thinking is not a kind of legal thinking. Logical thinking is a thinking process in which people achieve the purpose of understanding and transforming the world by comprehensively using various abstract thinking methods. Logical thinking, as a way of thinking, has been widely applied to the thinking field of law and jurisprudence since the birth of law and jurisprudence from a vertical perspective. It can be said that logic is the foundation for the operation of law and for jurisprudence to become a discipline. .

Although Holmes believes that the life of law lies in experience rather than logic, and logic does not seem to be the most important to law in a literal sense, this is completely a misinterpretation that lacks context and background. Holmes said this It is mainly a criticism of the traditional logical model of rigid syllogism, but it is not a criticism of logical thinking. It cannot deny the importance of logical thinking to law at all. From a horizontal perspective, when scholars define legal thinking, they always explicitly or implicitly add logical words or logical methods to the definition. This also proves the importance of logical thinking to law and legal thinking. are conceptually inseparable. When legal thinking is defined as a method of thinking, we can see that this method of thinking is basically consistent with the method of logical thinking, except that the legal prefix is ​​added in front to limit it. From a functional point of view, the method of logical thinking has the function of promoting legislation, that is, by abstracting objective facts to form concepts that meet the requirements of the law, thereby promoting the development of law; it also has the function of judicial application. Mencius said, "Only The original intention of this sentence is to emphasize the importance of people in the application of law. In fact, more precisely, the importance of people is reflected in their ability to use logical thinking methods to sort out specific case facts. The discovery of existing laws and the objective reasoning and argumentation of the discovered laws and specific cases to arrive at a legal and reasonable judicial conclusion are reflected in the entire process and require the use of logical thinking. Therefore, the author believes that logical thinking is a kind of legal thinking and the only legal thinking that meets the requirements of the rule of law. (2) Which is the dominant thinking of the current rule of law in China, dialectical thinking or logical thinking? Although it has been discussed above that dialectical thinking is not a kind of legal thinking, and it is even less likely to meet the needs of the development of the rule of law. Logical thinking is the only dominant thinking in the rule of law. But is this true in the current reality of Chinese society? Is there a paradox between what should be and what is? And is the dominant thinking in China’s current rule of law process logic or dialectics? The author believes that this needs to be analyzed starting from the subject, that is, from the force that promotes the rule of law. From a general perspective, we can divide the main bodies promoting the rule of law in China into three main bodies: the official, the private sector, and legal professionals. In fact, there are certain problems and loopholes in the definition of these three subjects. However, to facilitate our discussion here, it is assumed that the views held by the individuals in the three subjects are consistent. The views held by the individuals in the three subjects will not change in the long term. May change. Then we can see that the dominant thinking of the official promotion of the rule of law is political thinking, which has a strong command and obedience color and a sports color. In addition, it pays more attention to the efficiency and effectiveness of behavior and has a strong emphasis on procedures. Exclusion, in the end, should be unique to China and has a strong political party nature; and the dominant thinking of legal people in promoting the rule of law is mainly legal thinking dominated by logical thinking, that is, thinking mainly relies on rigorous logical thinking, and methods It comprehensively uses various logical methods, which is not only rigorous and objective, but also has a certain pursuit of romanticism and perfectionism; finally, it is the thinking of folk subjects, which itself has strong contradictions. The conflict is mainly because China is currently in a period of social transformation, and people’s thinking is also in a period of transformation. The author believes that folk thinking is mainly between official thinking and legal thinking, lacking its uniqueness. If it is unique, Sex is its inherent contradictions and complexities. What determines the dominant thinking is mainly the power of the subject and the thinking of the party with the upper hand. Through the comparison of the power and strength of all parties, we can clearly see that the most powerful among the three main entities in China is the government, and this strength gap is very obvious. That is to say, the officialdom is at the absolute center of power in Chinese society, and the other two subjects cannot compete with it. Therefore, the dominant thinking on the rule of law in Chinese society today is actually political thinking. In reality, all kinds of thinking that are contrary to this kind of thinking will be suppressed by this kind of thinking, and this kind of thinking enjoys absolute right to speak in the practice of the rule of law. The so-called dialectical thinking is just a tool used by this kind of thinking to suppress logical thinking, and logical thinking only stays at the theoretical level and becomes the dominant thinking of China's rule of law. 3. Conclusion From the above arguments, we can conclude that the dominant thinking in the rule of law should and must be logical thinking. However, this is not so obvious in our current society. It is mainly suppressed by challenges from traditional thinking, such as dialectical thinking and extremely strong political thinking. As teacher Chen Jinzhao said, "The integrity of our traditional culture does not attach much importance to logical analysis. Chaotic, holistic, and dialectical viewing of problems are the characteristics of our thinking. It is precisely because holistic thinking ignores formal logic that the way of thinking is compatible with the rule of law. It is difficult to form among the whole people, which has become an obstacle for us to enter the era of rule of law. Therefore, the construction of the rule of law requires a kind of legal thinking dominated by logic. Logical thinking is the basis of legal thinking. The rule of law can be achieved without methods such as deductive reasoning and analogical reasoning. "For us, a nation that does not value logic, the criticism of logical absolutes has no practical significance for us. ” In order to promote the construction and process of the rule of law in our country, what we need to do is to use logical rules to ensure the fixity of legal meaning, so as to give people reliable expectations and reshape the authority of the law.

In addition, we should be clear that the awareness of the rule of law is not a goal that can be achieved overnight, but a gradual development process. In this process, we need to insist on using logical thinking in legal practice to guide and help our country's legislation, judiciary, and law enforcement. First of all, it is inappropriate to call the three subjects. It should be better for the three groups, and secondly for each Each individual in the group does not necessarily hold the same thinking. Once again, it is ignored that the thinking of individuals in the group is malleable and can in fact be constantly changing. In legal work, we should try to minimize interference from political thinking and traditional thinking, and gradually realize the rule of law in our country through the accumulation of bits and pieces.