Rationality is based on moral ethics, which is often the basis of law, especially in civil law, which is more direct or close. It can even be said that rationality often represents the value orientation of law, such as the principle of good faith in civil law, which is the product of the direct legalization of morality and ethics, and is called the emperor clause, which is the highest basic principle of law; Another example is the principle of public order and good customs (that is, the civil activities stipulated in Article 7 of the General Principles of the Civil Law of China should respect social morality and not harm social public interests), which directly reflects the basic ethics of society. As human nature and common sense of things, rationality is a realistic state of existence and an objective existence independent of human will. In this sense, rationality constitutes the actual environment and situation of legal operation, so it is bound to become a realistic factor that must be considered in the application of law, and it even directly affects the identification and handling of facts.
Because of this, the application of law, especially the reasoning of law, should be based on rationality, and the value of rationality and law should be unified, so as to realize the unity of legal effect and social effect. If we don't consider the reasons, it will be inconvenient to find out the facts or the handling of the case is legal, which does not meet the requirements of real life and is difficult to be universally recognized by the society. For example, a decoration worker committed suicide in a house renovated a few years ago. The owner asked the decoration company to buy a house, and he bought a new house. If only from the legal point of view, the decoration workers committed suicide in the room and did not cause any damage to the living function of the house, so the owner's request should be rejected. However, through interviews with the public by TV stations, the public agreed that the loss of houses was obvious and the owners' demands were reasonable.
Then, considering rationality in the application of law, in addition to pursuing the unity of legal effect and social effect, has the following two meanings. First, we can identify the facts of the case through presumption, so as to correctly identify the facts of the case and reduce the burden of proof of the parties.
In civil litigation, according to the principle of "whoever advocates gives evidence", the parties bear the burden of proof for the facts they advocate, and the sufficiency of this evidence will directly affect the different legal consequences of the case. However, due to the objective non-replicability, contingency, complexity and diversity of cases, if we unilaterally pursue the objective sufficiency of evidence without considering emotion, many cases will lead to many cases being unable to be identified or the burden of proof of the parties will increase greatly. Therefore, in a specific case, it is particularly important to infer the facts of the case with the help of empirical rules, logical rules and legal provisions according to various indirect evidence and other known facts. The Supreme People's Court's "Several Provisions on Evidence in Civil Proceedings" also stipulates that if another fact can be inferred according to the rules of experience in daily life, the parties need not give evidence.
For example, when two people had a dispute, A was slapped by B, and A went to court to claim that his back peeling was caused by Otsuichi's slap and demanded that B compensate for the loss. It is known that it was summer and the sun was shining. A spent several hours in the sun without wearing a coat, and A seldom basked in the sun at ordinary times, but B claimed that A's loss was not caused by beatings, but by sun burns, so there was no need to prove it, because according to the known facts and the general life experience in this case, slapping would not cause A to peel off. However, if the cause is not considered, it is necessary to prove (forensic identification of A's injury), which on the one hand obviously increases B's burden and is also a waste of litigation resources.
Of course, because the determination of facts is a presumption, the law also allows the other party to submit contrary evidence to overturn this presumption. Second, the correct consideration of rationality is also conducive to the correct understanding and application of the law.
For example, a real estate company sold a two-story house to Otsuichi, but there were no stairs above the building, so B sued Company A for repairing it, while Company A argued that there were no stairs in its contract with B, so it was not a breach of contract and should not be built again. If the reason is not considered, the excuse of Company B is also true, and there is no staircase clause in its contract with Party A, then the claim of Company B is established? Obviously, this statement is untenable, because from the social experience, buildings should have stairs, which is a well-known fact and does not need to be stipulated in the contract. If rationality is not considered, the legal application of machinery will inevitably lead to the wrong application of law.
Of course, considering rationality is not unprincipled. The author thinks that we should pay attention to the following aspects: first, because rationality is uncertain to a certain extent, it is likely that "justice is in the hearts of the people and the woman is reasonable", so the rationality considered by law should be certain, that is, it is generally accepted, stable and reflects certain regularity, which can reflect people's understanding of the general regularity of life phenomena. Otherwise, second, we should understand rationality under the premise and scope of law application, that is, it cannot be applied without law.
Only by finding out the facts, applying the law and considering the reasons correctly can the result of applying the law correctly reflect the general law of social life and thus be true.
2. Huang Yiming: What ancient poems are masterpieces that are both reasonable and reasonable? The ancients said that "poetry expresses ambition" and "poetry is based on emotion".
"ambition" is emotion, including ideal and emotion; "Love" is emotion. But in poetry, lyricism and reasoning are not contradictory.
Poetry has the functions of "arousing, observing, gathering and complaining", in which "observing" means observing the truth of life and natural physics. Inferential poems, especially those in Song poetry and Zen poetry, constitute a landscape in ancient poetry.
In the cultural history of China, the influence of Zen is enormous. Zen emphasizes "understanding the nature of mind" and thinks it is very important to understand the nature of mind.
According to the Tanjing, the sixth ancestor Huineng once saw the wind blowing when he was in Huozhuoji, Guangzhou. One monk said it was moving, and another monk said it was moving. The two men argued endlessly.
Huineng stepped forward and advised, "The benevolent will move it." Through this story, we can see that Zen people attach importance to the heart.
Historically, many monks wrote poems. These poems either reflect their mental journey or explain a certain philosophy of life, which is often thought-provoking to read.
Among them, a Buddhist poem contained in Luo Dajing's "He Lin Yu Lu" in the Song Dynasty is very famous: I don't see spring all day, and my sandals break the clouds. When I came back, I smiled and smelled plum blossoms. Spring has come to the branches.
The aesthetician Zong Baihua once used this poem to explain the truth of "where is beauty". He criticized the nun: although she looks very open-minded, her consciousness is not deep enough and high enough.
She can't find that the whole universe is full of spring. She traveled all over the leading cloud, depressed and disappointed.
She enclosed herself in a narrow inner world. However, should this poem really be understood in this way? On the surface, this poem seems to be a monk looking for spring everywhere; Deep thinking actually implies the difficult course of exploring the truth: first, let's look at "looking for spring all day long, straw sandals break the clouds."
"Spring" can symbolize beautiful nature, at the same time, it is the embodiment of truth and Taoism, and it is also the symbol of truth and Buddha nature of Buddhism. So these two sentences explain Qian Shan's process of seeking truth after thousands of waters. But the sandals were worn out and the truth was hidden.
The so-called "iron shoes are nowhere to be found" reveals the difficulty of seeking and understanding Tao. Look at the last two sentences. The monk was disappointed when he was looking for spring. He accidentally saw the plum blossoms on the branches and couldn't help picking them. He felt that the fragrance was overflowing and it was full of the breath of spring.
Here, plum blossom is a symbol of self-mind. "Laughing at the plum blossom" means looking for truth and Buddha's nature in your heart. Spring in the Branches is to realize that everyone has Buddha nature, that is, the heart is Buddha and the self is Buddha.
Therefore, this poem well explains the truth of China culture that "Tao is not far from people" and "My heart is the universe". Symbolically speaking, spring is in everyone's heart, and the external beauty is only the external environment, and the external environment can only work through the heart.
If a person can always keep his heart clear and be unmoved by the outside world, he will have nowhere to go, not spring. Of course, the plum blossom in this poem can also be compared to what is in front of us.
With this understanding, this poem embodies the truth of keeping the Tao, spending one flower and one world. In the history of Zen, there is also a poem about Zen master Zhao Zhou.
Zen master Zhao Zhou, whose dharma name comes from imperial edict, is a master in the history of Zen. Becoming a monk at an early age, he studied with Zen master Nanquan Puyuan, and persisted in spreading Zen in a difficult environment to attract scholars from all over the world.
Zen master Zhao Zhou has a famous case: no matter who asks, his answer is often "to have tea." This case-solving inspired many Zen monks at that time, and it was handed down to future generations and lasted forever.
This poem about Zen master Zhao Zhou is very simple, but it hits home: Zhao Zhou is eighty years old, only because his heart is restless. I didn't know that sandals were a waste until I came back with nothing.
It says that at the age of 80, Jackson Zhao Zhou is still walking around and visiting all kinds of celebrities, because he still has some doubts about life and has not fully understood the truth. When I finally understood, I realized that it was a waste of money and time to walk so many roads and wear so many sandals.
Because the Tao is not elsewhere, but in people's hearts. As long as a person is good at studying himself and discovering his true self, it is not difficult to understand the truth of life.
In the words of later generations, it may be "nothing outside the heart" and "unreasonable outside the heart". The Taoist school founded by Lao Zi and Zhuang Zi, who lead a drunken life, advocates quietism and let nature take its course.
They denounced secular values and emphasized that "sadness and joy don't enter my heart". Taoism has a great influence on the literati in the history of China, so it is sometimes reflected in their works.
The classic in this respect can be represented by Su Shi's "Linjiang Fairy Return to Lingao at Night": Drinking Dongpo at night wakes up and is drunk, which is like the third watch. The child is short of breath.
You shouldn't even knock on the door, but lean on your cane and listen to the sound of the river. The dragon hates that this body is not mine, so forget the camp.
The night was calm and the lines were flat. Since then, this ship has passed away, and Jiang Hai spent the rest of his life.
In Ye Mengde's Summer Vacation, there is a story: Su Shi was demoted to Huanggang, Hubei Province, and once got drunk and wrote Linjiang Xian. The first word spread the next day. It is said that after Su Shi wrote this word, he hung his official hat and official uniform on the river bank and roared away in a boat.
At that time, the county magistrate was surprised and afraid when he heard the news. You should know that Su Shi was reeducated through labor in Huanggang with a crime. Now that he has suddenly disappeared, local officials have a great responsibility. So he hurried to Su Shi's apartment and found that Su Shi was snoring like thunder and still hung over.
So, what kind of philosophy does this word express that it becomes a classic? First, the transformation of drunkenness means jumping out of conventional thinking. "Drinking Dongpo at night to sober up and then get drunk" not only shows that the author has been drunk for many times, but also implies the opposition between the drunk and the awakened one in the world.
Sometimes, a drunk person may be sober, but a sober person may be a drunk person. "Like midnight" implies the default of time.
Time is not important to a reasonable person. The so-called ten generations living under one roof cannot be separated from the present, and the key lies in mystery or enlightenment. "The child's breath has thundered" is a symbol of drunkenness all over the world.
At this point, the image contrast between the intoxicated person and the awakened author has been highlighted. Second, all thoughts are static, and we can feel the real world.
"You shouldn't knock at the door, you should listen to the sound of the river with a stick", which has far-reaching implications. "Knocking on the door" implies that awakened people are exploring the world, while "should not" implies the status quo that no one understands.
"Listening to the sound of the river with a stick" has far-reaching influence. According to legend, some great men died on crutches, thus drawing an elegant picture of great men listening to the waves.
Jiang
3. What are the reasonable lines in the poem? 1.
Stones from other mountains can attack Yu -2. If you don't take these shoes, Lee can't be crowned.
The city is so high, and the square is one foot high. -Han Yuefu Folk Songs 4. What's the point of steelmaking? Turn it into a soft finger-gold.
Liu Kun 5. But as long as you go up a flight of stairs, you can broaden your horizons by 300 miles.
Wang Zhihuan 6. When secular things take turns, let the past become the past.
Meng Haoran 7. When vegetation is unintentional, it has its own time-Tang.
Meng Haoran 8. If you plant a millet in spring, you will reap 10 thousand seeds in autumn-Tang.
Li Shen 9. Mayflies shake trees, which is ridiculous. Don.
Han Yu 10. The bow should be the hardest, and the archer should shoot the longest.
Shoot the horse first, catch the thief first, catch the king-Tang. Du fu 1 1.
No matter how big or small, everything is suitable for you-Don. Du fu 12.
There are countless spring flowers. After all, what is autumn? Song. Chen Liang 13.
High work leads to resentment, and high power leads to danger-Song. Wang Mai 14.
Everything rises and falls naturally-Tang. Li Bai 15.
If there is love in the sky, it will grow old. Li He 16.
An inch of time is an inch of gold. Wang Zhenbai 17.
Life is 70 years old, which is rare-Don. Du Fu 18.
Outside the Castle Peak Building-Song Dynasty. Lin Sheng 19.
We read the story of the past in green books, but here we see a living person, stronger than the dead. Cen Can 20.
Flowers are similar year after year, but people are different year after year-Tang. Liu Xiyi 2 1.
My uncle can still fear the afterlife, but my husband can't despise the teenager-Tang. Li Bai 22.
If Jin Lifang is plated with real gold, real gold will not be plated-Don. Li Shen 23.
By the sinking boat, past, in front of the sick tree.-Don. Liu Yuxi 24.
Please don't play the old songs, listen to the new Tang. Rachel 25.
The new leaves in Fanglin urge the old leaves, and the waves before the running water are the waves behind them-Tang. Liu Yuxi 26.
A hundred flowers blossom into honey, and whoever works hard is sweet-Tang. Luo Yin 27.
Two grasses, such as broken name, do not waste rivers and streams-Tang. Du Fu 28.
Just look at the back waves and push the front waves, and realize that the new one is better than the old one-Song. Explain to 29.
Don't be afraid of clouds covering your eyes, just because you are in the highest realm-Song. Wang Anshi 30.
I don't know the true face of Lushan Mountain, but I am in this mountain-Song. Su Shi 3 1.
It's not plum blossom, so it smells good-Yuan. Gaoming 32.
What you get on paper is so shallow that you never know how to do it. Song. Lu you 33.
It is easy to get the moon near the water, and it is easy to turn flowers and trees into spring in the sun-Song Dynasty. Surin 34.
What is life like everywhere? It should be like flying in snow. I accidentally left my fingers and claws in the mud, and Hong Fei was driving that complicated thing.
Song. Su Shi 35.
People have joys and sorrows, and the moon has ups and downs. This matter is ancient and difficult-Song. Su Shi 36.
A pool of stagnant water has no waves, and the spring breeze sometimes swings. Wear 37.
Accumulated virtue leads to frugality, and since ancient times, melons are bitter and sweet-Yuan. Baipu 38.
It is raining at dusk in black dragon, and the old trees are blooming in spring. Gu 39.
There are talented people in the Jiangshan generation, each leading the way for hundreds of years-Qing Dynasty. Zhao Yi.
4. How to write the first argument that rationality is greater than jurisprudence? 1. Law is the embodiment of jurisprudence, and jurisprudence is the processing of habit. Any legal principle comes from habit, which is the experience accumulated by people through long-term production and life. Therefore, no matter from which angle, which theory is adopted, it should not go beyond people's sensibility, that is, it should not go against reason. As the legal saying goes, "the life of law lies in the fact that experience is no longer in logic, and logic is only to make up for the supplement of experience." Therefore, it is impossible for jurisprudence to get rid of rationality. On the contrary, jurisprudence is a factor that provides rational support for rationality. We can sort out the thinking and legal process: from people's life experience to habits, from habits to customary law, from customary law to statutory law or case law. In this process, it is not only the evolution of law, but also the promotion of rationality. Therefore, reason is the mother of jurisprudence. How can jurisprudence be great and reasonable?
2. When handling a case, a legal person should not only judge the facts, but also judge the value according to the facts. The so-called value judgment is to refer to and choose according to the common concepts of rationality and society. For example, whether a painting is obscene depends not only on whether the work publicly promotes the human body, but also on its purpose and use. If it publicly promotes obscene content, it should be regarded as obscene articles. If it is a medical anatomical map, even if it is full of human bodies (even blood vessels and cells), its purpose is to show readers the structure of human bodies, facilitate people to learn medical knowledge, and even cultivate famous doctors who can help the world and treat diseases, how can it be said to be obscene? All this is not stipulated by law, let alone can be pushed down by jurisprudence, because it is impossible for any legal provision or jurisprudence to stipulate and push things down one by one, but only to make a typed judgment (for a certain kind of problem). In specific cases, it still needs to be judged by combining the local environment, social customs and people's cognition, and it is proved that the problem cannot be completely solved by relying solely on jurisprudence, and it needs to be judged by reason. Judging from the above practical problems, jurisprudence needs to rely on rationality.
3. Jurisprudence can often solve the problem of right and wrong (what should it be), but whether it can be applied (what should it be) needs to consider rationality. For example, in the delivery of movable property, real delivery, simple delivery, instructed delivery and change of possession can be adopted. Although these four methods are all forms of delivery, in the case of bona fide acquisition, if the movable property is in the form of possession change, the effect of bona fide acquisition cannot occur. What is the reason? It can be said that different people have different opinions. Although the debate is endless, it is inconclusive. The fundamental reason is that, although the legal change of possession is a way to change the real right of movable property, it does not conform to the habit of paying with one hand and delivering with the other, and is contrary to emotion and reason. Therefore, if legislation can be established, it is not applicable if there is no reason to support it.