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指导英国作业允执两端，求中致和：英国法律文化的二元平衡精神
【摘要】大凡历史悠久的文明古国，都有自己别具特色的法律文化。英国法律文化的鲜明特色是允执两端、求中致和的二元平衡精神。它体现在英国的法律结构、法律渊源、审判模式、审判主体以及法官和律师队伍的构成、警察制度建设等各个层面上。二元平衡精神符合客观事物发展规律和自然辩证法，值得认真研究和借鉴。
【关键词】法律文化；平衡精神；中庸之道
Allow ends with, let the and of: British legal culture of binary balance spirit
【 abstract 】 a civilized history, has its own distinctive legal culture. British legal culture is acceptable ends with distinctive characteristics, for the binary and in balance spirit. It manifests in the British legal structure, legal origin, mode of judgment, trial judges and lawyers main body, and the composition of the team, the police the system construction and so on each level. 2 yuan balance spirit accord with the objective law of development and natural dialectics things, deserves serious research and using for reference.
【 key words 】 legal culture; Balance spirit; The doctrine of the
A civilized history, has its own distinctive legal culture. Look around the world, legal culture is the most distinctive national individual character characteristic when the British belong. Because of this, the British legal cultural characteristics of the problem has always been at home and abroad are especially comparative jurist legal scholar close attention, and is in many respects a basic consensus, such as justice center socialist, program priority, case law tradition, the laws of the common law + equity classification structure, binary system, the system of lawyers to induction legal ideas, give priority to pay attention to practical work ability cultivation of legal education system, it is recognized as one of the British legal culture characteristics. But, review of the existing research results, it can be found that the scholars mostly choose one or several more intuitive side, the isolation, the dispersed of research methods, this method in Britain unique. The attention to detail and characterization of research model, although in the early stage study is necessary, even is the inevitable choice, but it after all cannot provide to the reader a full and profound concept, hard to avoid give a person a kind of fragmented, lost superficial feeling. So, with certain academic accumulation, it will need further to further, from the philosophy of culture level of analysis and generalization. The author thinks that, the home of the British legal culture research process is in such a 2, youbiaojili period of change, and objective conditions mature. It is with this understanding, this paper attempts to make a discusses tentatively, i.e. from surface features analysis to dig deep meaning. We wish to promote British legal culture in the further development in a view to play a valuable role.
Combined with personal learning English law of the history of the comments, will the results of other researchers to the comprehensive investigation found that, in Britain's legal tradition, contain a profound philosophical culture connotation, that is acceptable to both ends, for holding in the binary and balance spirit. I think, this balance spirit is the essence of the British legal culture and the soul, it throughout the history of the English law and the law has developed the many aspects of life, presents the ubiquity of widely permeability and influence. The following slightly raises main to be explained.
First, in the form of legal structure, English law is not like the civil law as clear area divided into public and private law, civil law and criminal law, but is divided into two most common law and equity, this unique classification approach embodies the law and the morals of the binary balance. As is known to all, law and morality are so far human creation come out to the standard social behavior of the two sets of the most basic rule system, both has contact, and difference, already cross each other, and their independence. For the complicated relationship between the two, the legal circles seem to have no objection (say this is the most scholars character, in history, the scholars have different opinions, such as natural law school puts emphasis on the two are inseparable, that the only item of the moral law to reflect truly have the legal quality; analysis of the difference between the school emphasizes, stood for "real natural law" and the "granted method" strictly distinguish), but in practice it is a hard to grasp and properly handle the complex question. Some countries (such as the ancient Chinese) too advocating morality, derogatory law, the legal system development long-term walking difficult; Some countries (such as fascist period of Germany) the standard disdainful of legal effectiveness, disregard for the law of moral justice, the result is "a bad law of governance". English law of the common law + equitable binary structure form, ably resolved the law and the morals of the inherent contradiction, contributed to the benign interaction between them. Common law with its sanctions function represent and http://www.ukassignment.org/ygkczy/2012/0406/19398.html safeguard the legal authority and effectiveness, equity is by giving some ethics (namely the obligation of ethics) to the legal effect of the way that the moral legalization form, make English law in the moral field constantly from draw nutrition, enrich their own content, promote ethical standards. So, "on the one hand, legal procedures and the legal sanction to strengthen the good and evil is standard; on the other hand, legal standards are endowed with a few before they can expectant divine nature." [1] legal and moral infiltration into each other, bring out the best in each other, and with common prosperity-with, ensure the English law for the healthy and orderly development.
Second, the origin of law in form, English law as the main source for case law, at the same time, assisted by enacted law as a necessary supplement, this and continental law always give priority to enacted law are completely different. At the beginning of the common law produce, case was the only creation origin and existing form, but, since the late s after 13, enacted law in the development of the method of British play the more and more major role, that when king Edward I hosted a lot written by formulated laws and regulations and won the "British Justinian" title (1). Since then, the number of enacted law and potency unabated, especially in the seventeenth century "parliamentary sovereignty" after the establishment principle, enacted law increasingly wide range of adjustment. However, the basic position of case law to keep has not changed, in a western scholars as saying: "case law is the first, enacted law second." [2] this dual compound method source mechanism can prompt adjustment law stability and flexibility of the inherent contradiction between, endowed with English law with a unique self coordination development mechanism: on one hand, case law principle of follow precedent, which meet the legal certainty and predictability requirements; On the other hand, for the case of inevitable legal gap, this is through the judge's judicial interpretation to close at any time, but for the legal case can't cover blank field, it can establish method to be filled, so that the law of flexibility and adaptability to social security, which decides the British law is a balanced development of the potential has ego "open system" [3]. One thousand years, English law are able to like a sleepy backwater river, always continue and the progressive ahead, even in the middle ages to the modem history big reform period also can realize smooth transition, and the dual compound the legal source of the form is inseparable.
Third, in the mode of judgment, and the functions and powers of the rectification of socialist--ask different continental law, English law USES is the socialist--against system, it through the plaintiff and defendant equality between the main body of the lawsuit against that is between two yuan balance, in order to achieve judicial justice value goal. We know, judicial process, is the judge, according to established rules of law, for the benefits of conflict in the judgement, based on the fact that the laws of the applicable and, for the best balance of conflict, so that the pattern of interests to restore balance equilibrium state. To achieve this aim of both parties of the litigation equal status and strictly abide by the judge's neutral is essential to the two premise, and confrontation system is able to maximize the security litigation both balance of power. In view of the criminal litigation central witnesses on their starting point will have a better (the offensive attack in strong position, distinguishes party in a passive defense vulnerable position), British took various "or help strong weak" procedural law measures to safeguard of two sides are the necessary "reciprocal armed" and the status in balance. For example, in the lawsuit before police interrogation stage, the criminal suspect shall have the right to remain silent, shall have the right to require the lawyer present, and the police have the obligation will these interrogation in advance to being questioned right (that is, the Miranda rule). In the trial stage, a proof responsibility principle the prosecution evidence that tilt duty principle, it requires the accusers must provide sufficient proof did happen, and it is a crime for the defendant of evidence, and the defendant is not liable for proof of his innocence, obligation, more is not forced to self charges, to incriminate himself; Also the "beyond reasonable doubt" principle and the principle of presumption, that is to say, the prosecution for evidence that force should be enough to get rid of all the reasonable doubt degree of certainty, to order the defendant guilty, otherwise, even if it is in fact the guilty must also be think in law is innocent. Evidence in the strict, optimal relevance lattice and eliminating illegal evidence principle, it requires, the evidence must be submitted to the court with the case facts card has some contact between substantial, the main body of evidence, form and collect evidence procedure and method, etc must be compliance with the law, do not meet these requirements of the evidence, the court shall not be adopted. For example, involving the defendant conduct characteristics, the character of the evidence, the evidence that hearsay, belong to the list of automatic rule out; For the defendant in a statement of the guilty before the court trial, the court shall not be adopted, unless the prosecution can prove that the statement is the defendant real made voluntarily, and standards of proof must meet rejection of all reasonable doubt degree. For the evidence of an indecent, or only a witness especially minor witness testimony provided evidence, there must be other evidence to fill strong, or can not determine that the defendant guilty [4]. The value of the evidence rules is that the increased demand the plaintiff proof responsibility, strengthen the defendant rights protection, "loss to fill up more insufficient, adjusting to control the defended a contrast of relationship, to realize the balance of the litigation rights.#p#分页标题#e#
Fourth, in the judgment of the main body of the form on, the judge and jury WenAn alternative embodies the elite and the public participation, leading professional and civilian, legal theory and reasonable, form justice and substantial justice, the binary balance between. The system will be divided into law applicable jurisdiction right and the fact that two parts that right, respectively, by different judicial subject to exercise. It asked a judge to focus on what you're good at law disputes, in order to avoid getting entangled in the complexity of the facts arguing the professional knowledge of the waste valuable resources. The fact that it question to the jury, this is the jury can do it and can be a good thing. This kind of decentralization mechanism to help overcome the judge identified the potential danger of arbitrary, because the judge as part of the national power system, it is very easy to subject to vested interest difficult to resist the influence of power factor. And this is different, the people who are in power system jurors outside, detach, sometimes even for power behavior have a instinctive resistance and resist psychology. Therefore, the jury system can contain the judge's favoritism and arbitrary, ensure the judicial justice. In addition, jury system provides a experts and the people communicate cooperation channels, and embodies the judicial elite and civilian organically, this helps to overcome the judge professional thinking of the inherent disadvantages, achieve legal reason, and form justice and substantial justice harmony. Historical experience prove that legal elite law rules themselves to the attention of the rule of law is often exceeds the consequences, that is, for the method and process are usually better than the purpose and the result is more value. And ordinary people because of legal learn fewer and known as worldly wisdom, in what is justice and judgment is not reasonable, often more focus on social thought in terms of the requirements of conscience, "if applicable law caused by the results, not in strict justice, and they will blame any legal" [5], brave to say "no", and don't need to explain the reason. This "unreasonable judgment" right is that one of the jurors proprietary privilege, called it "the jury's no abstained" [6]. Take this privilege, the jury can public values, justice and judgment into judicial process, to make up for the professional judge the intolerance of mechanical law enforcement, and received a law of flexible and rigid right of the overall consideration effect, make the applicable law closer to real life more directly, responses to the people's needs, judicial power to prevent "pure specialization", "pure nationalization" and "pure bureaucratic" the wrong way. To this, the evidence's Moore's law scholar wrote: "law and justice inevitable in the conflict of regular located in. We yearn for justice, and we think that justice is done by law, shall be. But if we passed a law can't achieve justice, we condemn. This is now a jury of the role the occasion. After the state of the confidential fail in the jury will adjust the general rules of law, in order to realize the specific case of individual justice. Like this, the laws of the notorious strict rules are avoided, and to the satisfaction of the law of the people's mind. The jury to do safe is this. It provides us the flexibility of the law, and is in the realization of justice and get the support of the people is the most important. Guidelines, and the kind of flexibility is legal trial judge can never given. The judge must write his decision, announced that the law, and the reason for that fact. For these requirements, he shall not be in the public record. The jury and a little from the jury room, the secret of the evaluation of the people of a justice is an indispensable part of." [7]
Fifth, the structure of the team in the judge formally, the vocational judges and non-league magistrate judge system composed of two embodies judicial professional and the professionalism of the balance between two yuan. The judge professionalization and specialization is the inherent requirement of the civilization of legal system and the inevitable trend. Britain is the first step on the road to professionalization and specialization of countries, but never completely dominating the professional judge British legal stage, and by the professional amateur judge judicial power of the traditional always maintain share has not changed. 13 century professional judge of produce, grass-roots society happened the lawsuit especially mild cases, by the public court all still "litigant person" trial. From 14 centuries later, over such cases the nature of the magistrate amateur through the court season, only more complex case to submit the three big central helps them solve serious common law court or the professional circuit court judge trial, so the number of British vocational the judge has been negligible. In the middle ages, normal on-the-job the judge 1200 only, and the magistrate is up to thousands of people. Today, the English professional judge scale also however 1200-1500, in which is the backbone of the 150 worked in the upper house, the appeal court and of the high court senior judges, 550 circuit judges and 355 district judge. This means that most of the UK (mainly small mild cases) judicial work by about 30000 non-professional part-time sex magistrate finish. Today, by contrast, France had about 60000 professional judge, Germany about 20000 professional judges. A first open the judge of the first national professional, has always maintained such a huge non-league team the judge, this is without a doubt a deserves serious thinking phenomenon. In the judge calls from throughout the professional of contemporary China, this phenomenon worth our attention and especially thoughtful.
Sixth, in the lawyer's structure form, British lawyer trial lawyers and lawyers are divided into two parts, the first with litigation business is given priority to, the latter to non-litigation primarily, two independent, each other is not Chinese, more shall not interfere, the binary system of lawyers to satisfy two kind of different legal services to the needs of society. Of course, two yuan lawyer system also has certain limitation, therefore, in recent decades, the British government introduced several reform measures to allow the two kind of lawyer conditional between flow, but, binary system did not cancelled. Investigate its reason, a division of labor of specialization and promote because is to improve the quality of work and the only way of efficiency, especially in today's a pluralistic society, legal content and legal service market becoming more diverse, complex, the law of technical and professional more and more high, no lawyer can't master all laws, therefore, choose their own expertise as a leading business areas than ever more urgent. In fact, in any legal system developed countries, lawyers have some degree of internal division of labor, and the more perfect legal system, division of labor is, the more indispensable. For example, in a system of the United States attorney yuan, most large firms are divided into the internal functions of different lawyer some group, respectively, took over the business or non-litigation litigation, criminal cases or civil cases. In France, have not only acting lawyer and defense lawyer of the actual distinguish, but also an independent notary public in the class. Visible, the division of labor sense, Britain's two yuan lawyer system originally has certain rationality. It is the irrationality of from the objective laws of natural division, people will be immobilized division, through all sorts of written and unwritten rules that make artificial barriers ", make two lawyers their closed, isolated from each other, and against the modern society in open and liquidity requirements. So, the ultimate goal of the reform is not cancel the division of labor division should not also-is thoroughly cannot cancel the merger, but tear down "artificial barriers", introducing market mechanism, and allow the two kind of lawyer mutual flow, free competition, let every lawyer can no limit to find his best position, maximize their interests and expertise. For this, the British lawyer system the aim of reform seems to have reached. Another more profound reason is, two yuan lawyer system as English law of the spirit of the inner balance product, is in the judicial practice of spontaneously formed, with deep history of the foundation, and Britain is a special respect traditional conservative type countries, completely abandoned the old system, and adopt a new system, this and British cultural tradition is not that agrees. Therefore, in the author opinion, complete with two types of lawyers, realize the integration is extremely unlikely. In other words, binary system as a British lawyer system legal culture spirit one form of externalization of balance, estimates that in the near future will not have a fundamental change, although local reform and adjustment of could still happen.
Seventh, in the establishment of the system of the police, the British in the police, the allocation of power and regulation, follow the "free all and" principle, embodies the "can do" and "limited" balance. The police is adapt to the modern industrial society to the security and of generation, is the function of the violence has crackdown state organs, its main functions are cracking down on crimes and maintaining public security and civil liberties. For this, police have been given the right to detain right, including search, arrest, the right, the right of interrogation custody right and a series of mandatory power. The power of the mandatory consonant with the police and may have advantage of their lawful individual rights infringement, and alienation oppressive tools for the government of the danger. Therefore, how to properly with and regulation police power, both must ensure that the police have a job right, positive "can do", ensure the security interests of the state and society, and to make the police power "limited" to prevent abuse, to ensure the legal rights of the individual against infringement, became the police system construction in a most complex important legal practices. The ideal solution nature is both, from which the word, as the British police, "the author of Scott said:" police power too powerful, but bad is the power of the police not strong enough is also dangerous. The two extreme will damage the national freedom." [8] overall, British police power in balance "can do" and "limited" relationship is more successful, however, is a dynamic process. In 1829, at the beginning of the police to create, known as the freedom of the traditional British people to the new things most something to fear, or even suspect that the police is a government spy, curse them is "blue devil", "GaLuJi", "life lobster". To eliminate as soon as possible public fear psychology, fight for social support, "the police" father of a peer to determined the "with type" police style and "due process" the basic policy detection model (2). He made the police instructions "explicitly asked police must abide by the following principles: politically neutral, shall not participate in any political party campaign. Civilization law enforcement, and will not allow to the crowds rude. At least the use of force, the police on duty is allowed only daily a long piece about a foot wooden batons, and it will be kept in a special police in the recession, but in some cases only as a last resort to use, JingDu above can be equipped with handguns, but at ordinary times going to keep in the police station, only the special task you can only ChuJing with a gun. Exercise of power according to law, no matter what the situation, the police to any behavior must be "have enough support the legitimacy of the" [9], especially in the exercise is investigated the option, the police must be strictly follow the "due process" act. His police force to British police to the policy of the good common image (called "the uniformed citizens"), created the world in the history of the police "the myth", but also make the police crime control performance by certain negative influence. Of the 20 th century after the late, as the society and the complexity of growth, rising crime rate and public security situation pressure increasing, the weakness increasingly exposed. So, the British government to further the police power especially indictment, authorized the police can not issued by the justices accepting only according to "reasonable doubt" can search, arrest suspects. The police weapons and equipment has been greatly improved, militarized degree and rapid response ability obviously improved. These changes that the British police "crime control" functions strengthened. However, this does not mean that England to give up the "due process" mode, turned to its opposite--" crime control "mode. Because, at the same time, the British government through the legislation, regulation and the indictment of the police also strengthen the monitoring of synchronization. In 1984, British formulated the police and the criminal evidence law ", and a supplement to 5 department the detailed rules for the implementation of the resistance to the police for search, arrest, detention and treatment of property, interrogation and the detailed provisions suspects compulsive power of the rules of procedure. So, the strengthening of the 20 th century change is just the right of the police action fill the disadvantages, and make the right of the police "can do" and "limited" more harmonious, "due process" model is more perfect just, the use QiuEn words, the aim is to "in personal power and the interests of the state, to achieve" moderate balance "[10].#p#分页标题#e#
The above for although far from won the British legal culture all the external characteristics, but enough to make it acceptable at both ends, with a hold for the binary and in balance spirit show without involuntary discharge of urine. This spirit to admit that the complexity of the things and the universality of contradiction for the premise, accord with the objective law of the development of nature, it is a kind of scientific world outlook and methodology, known as the "golden way" reputation. Dialectical materialism tell us, all things of the world, is a polar opposites of containing contradictory unity. If both parties contradictory balance structure, harmonious relationship, things are in stable state of union and the routine, the middle road of forward development. In other words, the balance of the universe is normal existence and movement of the natural law and common law, as that the ancients cloud: "who of the world, the path and YongZhe, the theorem." [11] position is the reason, heaven and earth and the ecological balance, all things to breeds; Society balance relationship, people can live and work; The body biological balance, the life can the longevity and health. If the imbalance between opposing polarities, prefer to a certain extreme, the development of things will slip into a partial way, XieDao, and finally to the opposite of things. To avoid a situation after the occurrence, people shall be the right choice is not holding a holding two, refused to extreme, i.e. follow moderate and reasonable principle, properly grasping things end, in order to strive for and keep a harmonious balance. The British capable of the objective law of mystery, the nature of the tao, its ably to the legal system construction and the law of life of operation, thus create value to balance as the core of the legal culture.
HangBi so far, can not help but think to China the treasure of the doctrine of Confucian culture- In my opinion the author, sheet is two concepts of the ideological connotation and value for appeal, balance and the doctrine of the spirit can delimit equal-sign, the Chinese ShuoRu explain the doctrine of the mean benefits, such as the doctrine is "knock at both ends, with the status of the genre of" is "impartiality, from which the word" is "free all and" (3), almost verbatim can bring the British legal interpretation of the cultural spirit of balance. But, here it must be pointed out that balance spirit and the doctrine in the UK but the practical significance of the great differences. In Britain, the balance of the spirit of the idea never been people talk interminably show everywhere, but in the chemical i. e. the legal system and the social law every link of the behavior of the daily practice in, or, rather, it is mainly as a real physical culture and show to the world. In China, the doctrine of the ruler of past and scholar by the great esteem and that is people shout versus ring, but in the national system and the actual political legal life but no trace, instead, advocating "whole unification" system and used to "top-down" model of the absolute monarchy ruled most [12] do exactly the opposite, consciously or unconsciously follows the "black or white" 2 d opposites in logic, and the results, "interests", "nothing down, nothing up", "set" fighting philosophy is love, from one extreme to the other extreme "in two with a" pies common things, the golden mean actually become a kind of beauty and empty moralizing, or is it just pop in a small literary intelligentsia in a ethics, even the main is a ruler to tame the spirit tool of the subjects. In a word, on this issue, China is "all talk", at least, is "the much, said the little" (4); Britain is "light practice don't say" or, "said little, do more". The UK is the surface looks similar middle path concept, and in the design of the legal system and legal operation practice level but PanReYunNi, the root of this is about. Today, the difference is still visible. In the current our country is to strengthen the rule of law and legal culture under the situation of construction, this is a very serious reflection is the serious problem of people.
Comments:
(1) The time of Edward I make written regulations, there are four is The most important, they are: The first Statute of Westminster (1275); The Statute of Gloucester (1278); The second Statute of Westminster (1285); The Statute of 1290 (Quia Emptores). See Great Britain encyclopedia entries in the common law,
(2) Herbert parker had put the police operation mode of the indictment summarized into two basic types: "crime control" mode and "due process" mode. The former based on social whole security to crack down on crime control and is the first value target; The latter based on individual rights safeguard, emphasized the importance of the indictment exercise program legitimacy. See (English) Michael MaGuiEr. The policeman management-the 1984 police and the criminal evidence law "[A]. Michael gao wei. British criminal judicial procedure [C]. YaoYongJi et al. Beijing: Oxford University press, 2003.68.
(3) zhu xi in the zhu xi's chapters "wrote:" the impartiality, without transgression, and all the name of the count, common. Also." ChengYi in the doctrine of compiling "wrote:" no partial is called, not easy for the no."
(4) in China, the knowledge of different numerous examples, such as pipe preach "up her barns firm and know etiquette", "food and clothing to the full, wed bred" and so on, but in the social reality, "when think lust", "for rich and goes" but the phenomenon such as can be found everywhere.
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