How is the law believed?

-Comment on "A Study of the Relationship between Christianity and Western Legal Tradition from the View of Holistic History and Holistic Theory"

Wang Yong

First of all, let me explain the structure and writing of this comment. My comments are divided into three parts. In the first part, I will explain my basic views on the main report submitted by Deng Yong in concise language; In the second part, I will explain my reading understanding of Pahlman's law and revolution, and then construct a Pahlman problem that I understand; In the third part of the article, I will try to transform my problem construction of Law and Revolution into the framework of my analysis and evaluation of the main report, so that my conclusion in the first part can be proved or supported.

I. Basic comments on the main report

On the basis of combing the author's exposition, the main report extracts Pahlman's main theoretical contribution, that is, using the "holistic view of history" to discuss the history of western legal tradition; Explaining (Western) law with "holism viewpoint" and coping with the crisis of western legal tradition. I think these two holism viewpoints come from the main reporter's construction of Pahlman's problems. In fact, these two holism viewpoints have also become the key perspectives for the main reporter to interpret and evaluate Pahlman's historical narrative.

However, in my opinion, due to the personal choice of the subject's understanding perspective on the Pahlman issue and the inconsistency between the two concepts of "holism" as an analytical tool, the text of the report failed to discover the origin and development trend of the hidden problems, thus failing to clarify the deep structure or strength behind Pahlman's exposition. So that it only stays at the descriptive evaluation level.

Second, sort out the thoughts and problems of Law and Revolution.

In the book Law and Religion published by Pahlman in 1974, there is a famous saying that "the law must be believed, otherwise it is useless". It is this Pahlman who pointed out in his Law and Revolution that the western legal tradition is experiencing an unprecedented crisis in the 20th century. "In this crisis, our entire legal tradition has been challenged-not just the past. [ 1]

In "Law and Revolution", Pahlman traced the origin of western legal tradition to the revolution of papal system from 1075 to 1 122. By describing the nature of the papal revolution, the author broke the stage division of traditional legal historiography.

As far as its origin is concerned, the author points out that this revolution is first of all a history of the separation of church authority from secular authority. On the one hand, it liberated the Roman church from its subordinate position to emperors, kings and lords, on the other hand, it strengthened the secular political and legal authority of emperors and kings. At the same time, this revolution is also the beginning of legal belief. It is in this sense that Pahlman pointed out that it was this comprehensive upheaval that produced the western legal tradition, and from then on, "people gradually regarded the law as the essence of faith" [2].

From origin to crisis, the author points out the characteristics, law and history, law and revolution, crisis and possible solutions of western legal tradition through a linear description of nine centuries. Considering that this paper will build a problem model to comment on the main report, I summarize Boehlmann's thoughts in the introduction and conclusion of this book as follows:

First of all, Pahlman pointed out that the western legal tradition originated from the Pope Revolution between 1075 and122. This is a great revolution, "from which a tangible, organized and hierarchical church emerged, a legal entity independent of emperors, kings and feudal lords, and only subject to the absolute autocratic authority of Roman bishops." ..... for the church and secular medieval historians, its importance is more and more obvious. From this revolution, new laws applicable to the church have emerged, as well as various new laws applicable to various secular kingdoms. [3] Through this statement, the author also pointed out that the ideology of19th century, including Marxism, tried to cover up the rupture of western history.

Secondly, Pahlman further analyzed the relationship between history and nation-state after analyzing that people who hold traditional historiography and classical historical staging view will think that history is the history of nation-state. In the author's view, behind the nationalist historiography law in favor of dismembering the western heritage, history is the essence of argumentation for the nation-state. Nationalism only assumes that history is national history. [4] As far as legal history is concerned, the author points out the reasons why Maitland did not write English law with examples. [5]

The author analyzes the theories of social theorists such as Marx and Max Weber. I think that if we admit Pahlman's description, it will lead to a re-evaluation of the following two theories: a) Marx's theory on the relationship between law and history; B) Modernists destroyed the "modernity" dream of capitalism and socialism based on their recognition of the past and the "pre-industrial society".

Thirdly, Pahlman expounded his views on law and revolution. He believes that the traditional concept of legal history that the development of law is only gradual should be corrected. The development of western law has experienced many large-scale revolutionary shocks. Moreover, "the new legal system established by the revolution has been endowed with a historical side" [6] The influence of the revolution on the law began in the late 1 1 century to the early1century. This revolution has impacted the old systems and beliefs and established new laws. But revolution is not rebellion, let alone gradual change. Revolution gains legitimacy by exploring the past and pointing to the future. The revolution has changed the legal tradition and made this legal tradition continue. Immediately, Boehlmann pointed out that "timely change is the key to the vitality of all legal systems facing irresistible pressure of change". [7]

Fourthly, Pahlman pointed out that the legal tradition is currently facing a "crisis comparable to the revolutionary crisis that hit the western legal tradition in the past" [8]. How to deal with this crisis, the author clearly pointed out the solution-a need to mobilize the adaptability of the whole tradition [9]. When analyzing the causes of this crisis, the author attributed it to more crises from western civilization, and pointed out in a speech from 65438 to 0999, "If we want to find the causes and results of the crisis of western legal tradition, we can point out two major developments in the 20th century. The first development is the emergence of bureaucratic state. The second development is that this bureaucratic country uses laws to shape the beliefs, attitudes and opinions of its citizens. " [ 10]

As far as dealing with this crisis is concerned, the author puts forward the suggestion of "moving towards a social theory of law", which will get rid of Karl Marx and Max Weber's simplification of law and its causal relationship. According to its definition and analysis of law, the social theory of law should emphasize the interaction between spirit and matter, concept and experience. The three traditional schools of law-political school (legal positivism), moral school (natural law theory) and historical school (historical law school)-should be integrated into a comprehensive law. "[1 1] Moreover, the social theory of this law will adopt a compilation method suitable for legal history, rather than a compilation method derived from economic history, philosophical history or other history.

The above is my interpretation of Boehlmann's point of view. After listing, I will try to construct Pahlman's problem. Through this construction, on the one hand, it explains my reading comprehension, on the other hand, it provides an analytical framework for the later comments on the main report.

Bowman tried to save the legal tradition in crisis by tracing back to history, but the evolution of western legal tradition is always linked with the developing belief system. Since its birth, the important content of this tradition is to have people's faith in it. This belief pattern points to Roman Catholicism in12nd century and Lutheran Church in16th century. /kloc-British Calvinists in the 0/7th century, even during the French Revolution in 1789 and the American War of Independence at the same time, could still find their refuge in the rational form given by God. [ 12]

The author believes that "the traditional symbols of western society, that is, traditional images and metaphors, are first of all religious and legal." However, in the 20th century, for the first time, religion became a private matter to a great extent, while law became a matter related to real politics to a great extent. The connection between religious metaphor and legal metaphor has broken down. They can no longer express society's imagination of the future and the past; It is impossible to win the enthusiasm of society. "[13] So how can the law regain its faith-that is, the author points to the future? In the author's own words, "I have to examine the western law and legal tradition, order and justice from a distant historical perspective in order to find a way out of the current predicament." " [ 14]

In this tracing, Pahlman emphasized the complex relationship among religion, history, revolution and law, responded why this tradition can only be formed in western countries, and criticized the previous social theory about law. What is particularly interesting is that he explained the process of western legal tradition with the "revolutionary" model. The role of religion in the evolution of this tradition is also discussed. However, in the author's view, these are all subject to the author's solution to the social theory of a law.

This "social theory of law" never came out of thin air, but was built by Pahlman on the basis of analyzing and criticizing Karl Marx and Max Weber's theories. Pahlman clearly pointed out that "another kind of historical compilation that appeared in the late18th century and19th century also concealed the history of the formation of western legal tradition, and this kind of work is closely related to the new science of sociology. This new historical compilation is sometimes called "socio-economic history" and sometimes "social theory". ..... Later, the main representatives were Karl Marx in the middle of19th century and Max Weber in the late of19th century and the early of 20th century. These "social theorists" are different from "scientific historians". They try to explain history according to the social and economic forces that play a role behind the appearance of political and ideological events. [15] It is this external interpretation of the law that makes the law lose people's faith in it.

Through the analysis of the formation of western legal tradition, Pahlman thinks that this theory of instrumental interpretation of law is not comprehensive. He pointed out that "law is also the expression of moral norms understood by human reason. ..... is a derivative of habit and a product of historical values and norms rooted in the same social subject. " [ 16]

Finally, according to his definition and analysis of law, Pahlman pointed out that his "social theory of law" should emphasize the interaction between spirit and matter, ideas and experience. The three traditional schools of law-political school (legal positivism), moral school (natural law school) and historical school (historical law school)-should be integrated into a comprehensive law. " [ 17]

Then we can know what is the core problem of Pahlman, that is, to find a future-oriented law and legal theory, and this law will be believed. I will use this question to comment on the main report.

Three. An explanation of the basic views of the opinion

First of all, the main report uses a lot of pen and ink to refine the content of the reading text, but it is precisely because of this chapter-by-chapter induction that the main report does not extract the main line of Bowman's thought from the overall level, and thus does not reveal the "Bowman problem" on which the main report is based;

Secondly, the main report constructs two concepts of "holism" to examine the author's statement about the formation and crisis of western legal tradition, but because of the fuzziness of these two concepts [18], the author's evaluation only stays at the descriptive level, which makes the final query seem a bit far-fetched and pale.

At the same time, as far as this book is concerned, Pahlman tries to find a way to the future by tracing back to history, so when we start the personalized understanding method, we should explain the relationship between the intention of this way and the theme of the work.

Judging from the title of the main report, Boehlmann is concerned about the relationship between Christianity and western legal tradition. Indeed, from the perspective of Bowman's concern, the relationship between Christianity and western legal tradition is extremely important, because the relationship between law and religion has the source significance in Bowman's theory. It is the starting point of Pahlman's theory on the formation and evolution of western legal tradition, and it is also a factor that must be analyzed when demonstrating the role of "revolution" in western legal tradition.

The main report holds that "demonstrating the relationship between Christianity and western legal tradition is the central clue of the conclusion of the introduction, but the author's main theoretical contribution is not the conclusion drawn from the research, but his research methods and ideas." Pahlman's main theoretical contributions are as follows: to discuss the history of western legal tradition with the "holistic view of history"; Explain the law with "holistic theory view" to deal with the crisis of western legal tradition. [ 19]

The main report attempts to understand Bowman with the relationship between Christianity and western legal tradition as the central clue. However, due to the author's way of combing chapter by chapter, the report itself lacks a clear description of the relationship between Christianity and western legal tradition, which makes the relationship between them submerged in the narrative of Bowman's whole thought, thus cutting off the meaning of the problem itself. On the other hand, the report does not analyze the significance of "the relationship between Christianity and western legal tradition" in the whole Bowman problem.

As far as the main coverage is concerned, in order to evaluate Pahlman, the reporter put forward two concepts of "holism" and regarded them as Pahlman's theoretical contributions. [20] There is no doubt that this is the main reporter's construction of Pahlman's problems, which in fact makes it a perspective for the main report to interpret and evaluate Pahlman, so it requires the main reporter to strictly construct and evaluate these two concepts.

The most fundamental thing is that the concept of "holism" itself is vague, which is not enough to explain Pahlman's unique contribution to narrative tradition and crisis response. Pahlman traced the history back to the revolution of 1075, which does not mean that he insisted on the so-called "holistic view". Pahlman is different in that it moves the demarcation point on the timeline forward by several scales. Metaphorically, 1/5 points exist on this line, and 4/5 points also exist on this line segment. The problem is that the difference of demarcation points only illustrates the special problems that may exist based on the difference of length, which has nothing to do with its own "whole", but a division of the whole. [2 1]

Therefore, Pahlman's contribution is not so much that he adopted this so-called "holistic view" as that he found a suitable dividing point and put it on the church revolution. One of Pahlman's theoretical contributions is that he expounded the great influence of revolution on legal tradition.

In fact, when we go back to the back of the question, we will find that the key is not whether Pahlman adheres to the so-called "holistic view", but that the author tries to analyze and criticize some existing legal theories by discussing the role of revolution in the legal tradition, so as to find the possibility of law regaining faith and construct a new legal view. In this process, I think a more enlightening question is Pahlman's analysis of the following question-what factors are at work, dismembering the original legal source, value and concept of the legal tradition. Applying edmund burke's words [22], we can find that the people behind this scene are nation-states or nationalism. Pahlman believes that the ideology of nation-states dismembers the cultural heritage of nation-states and makes history the history of nation-states. And we can further ask, what supports the nation-state so keen to rewrite history.

In the final analysis, due to the choice of focus, the main report did not pay too much attention to the following two points: a) as far as law and revolution are concerned, it did not pay attention to the significance of Pahlman Theory to the role of revolution in the process of legal development; B) As far as law and religion are concerned, Pahlman's analysis of how law is believed is not taken seriously. In the end, the main report failed to continue Pahlman's narrative context, find the origin and development trend of the hidden problem, and failed to clarify the deep structure or power hidden behind the appearance. Therefore, the reading of the works only stays at the descriptive evaluation level, and because of the inconsistency between the two concepts of "holism" in the main report, its three questions seem a bit far-fetched.

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[1][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House, September 1993, P39. ..

[2][ America] Bowman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P638. ..

[3][ America] Pahlman's Law and Religion, translated by Liang Zhiping, China University of Political Science and Law Press, 2002, P49. ..

[4][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P20. ..

[5][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P2 1.

[6][ America] Bowman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P 19. ..

[7][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P25. ..

[8][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P43. ..

[9][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House1September 1993, P43. ..

[10][ America] Pahlman's Law and Religion, translated by Liang Zhiping, China University of Political Science and Law Press, 2002, p. 173.

[1 1][ America] Pahlman's Law and Revolution, translated by He Weifang, etc. , encyclopedia of China publishing house1September 1993, P53. ..

[12][ America] Pahlman's Law and Religion, translated by Liang Zhiping, China University of Political Science and Law Press, 2002, p. 170.

[13][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House, September 1993, preface.

[14][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House, September 1993, preface.

[15][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House, September 1993, P664. ..

[16][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House, September 1993, P683—684. ..

[17][ America] Pahlman's Law and Revolution, translated by He Weifang, China Encyclopedia Publishing House, September 1993, P52. ..

[18] The main report expounds its so-called "holistic view" from two levels. The first is its concept. The so-called holistic view is a comprehensive social theoretical position, that is, it is not limited to the theoretical thinking of a certain school, but comprehensively uses the social theory of studying something to learn from each other's strengths. This comprehensive application is mainly aimed at different schools of social theory; Second, as far as legal research is concerned, it generally refers to the synthesis of natural law, historical law and positivism law, and combines the three theories to conduct a comprehensive study of law, which is what Bowman himself calls "holistic law." As far as my personal understanding of law and revolution is concerned, I think the author mainly criticizes and denies various social theories.

[19] See Deng Yong: Study the relationship between Christianity and western legal tradition with holistic historical view and holistic theoretical view.

[20] "Bowman's main theoretical contribution lies in: discussing the history of western legal tradition with" holistic view of history "; Explain the law with "holism" and deal with the crisis of western legal tradition. " It is believed that the author's overall view of history is mainly reflected in three aspects: the definition and application of various concepts; In the overall vision of "revolutionary model", western history (law) was fundamentally broken in the middle of the Middle Ages; It is believed that the papal revolution is a fundamental revolution in western history, which has caused a sudden change in western legal history. See Deng Yong: Studying the Relationship between Christianity and Western Legal Tradition from the View of Holistic History and Holistic Theory.

[2 1] In the main report, the author did talk about the concept of "wholeness" by quoting words, but picking up some languages about "wholeness" and "synthesis" does not explain the self-consistency of the theory itself.

[22] edmund burke said: "Europe is actually a great country with common law. All politics and economy in Europe originated from the same source. " See Pahlman's Law and Religion, translated by Liang Zhiping, China University of Political Science and Law Press, 2002, p. 170.