时间：2019年06月01日 Source: jajshop.com Time: June 01, 2019
Dharma is an inevitable connection derived from the nature of things. Read the first sentence of Montesquieu's "On the Spirit of Law." Everything in the world has its own laws to follow, and it also has its own laws. God created the world, protected it, and became familiar with it because he made the rules, because he had wisdom and power. The Creator is the faith of mankind, and hope. Therefore, if another world is to be created outside this world, then this world is either eternal or permanent. Creation seems to be a simple matter, but the eternal laws and rules are the basic conditions to maintain its operation.
Laws are everywhere, and without them, the world will not survive. Before the law was created, there was a fair relationship. If there is no justice outside the statutory provisions, it means that all radii are not equal until the circle has been drawn. Justice exists and establishes relationships before a person can enact a law of justice. But that is not to say that only the world and the physical world can manage the same. At the same time, in comparison with mammals and plants, mammals maintain their personality due to the temptation of physiological pleasure. Therefore, they do not fully comply with natural law. Beasts do not have the supreme advantages of human beings. Beasts do not have the hope that humans have, and there is no hope. Disappoint without expectations, no worries and fears, and no worries. At the same time, without desire, they can protect themselves well. For them, desire is only for reproduction.
The law of nature, as its name implies, was a rule that existed before humans appeared. It is not human beings, but the essence of life. Natural law has created the concept of the Creator in human minds. It is to let humans acquire knowledge, not how much knowledge is available. In ancient times, humans would go out for food, which is the principle of natural law; it is the rule of natural law that they want to escape when they are in danger; fear of nature is the rule of natural law; trapping small animals and escaping large animals is natural law the rule of. After the existence of society, human beings are in the society, the concept of equality with each other gradually disappears, and the struggle begins. Every nation has its own power, and nations want to get each other's things, so wars occur. The emergence of war not only hurts people, but also infrastructure. However, war must always be avoided and it must be over. In this way, in order to reduce harm, human beings have enacted laws that stipulate the code of conduct between people and between nations. Rather than heal in the injury, it is better to have no harm in the first place.
Among them, the will is an important connection. The unity of will allows individual forces to unite. The power of law is connected. The law that governs human behavior is human reason. As long as you know what you are doing, if there is any behavior that is harmful to others, you can think for others. You can really abide by the law. And the laws of the country should be connected with the natural conditions. But their connections are inseparable. There is no need to separate political law and civil law. The spirit of the law is not in which field it is, but in whether he said that the impact can be enough to really involve everything. It makes them interdependent and related, while restricting human behavior.
Article 2: On the Spirit of the Law after Reading 500 Words
"On the Spirit of Law" is the most important work of Charles, an outstanding French enlightenment thinker in the first half of the eighteenth century. Louis; Montesquieu (1689-1755). Involved in various fields of social life, including economics, politics, culture, military, religion, morals, philosophy, history, geography, etc. In particular, it has studied and discussed a series of subjects such as jurisprudence, constitutional science, criminal law, civil law, and international law in a unique way, and has become a unique encyclopedia of bourgeois law.
The book "On the Spirit of Law" reflects the political and economic aspirations of the bourgeoisie and working people at the time. The entire book strongly advocates the establishment of mutual checks and balances between the three powers in political theory. The purpose is to avoid the emergence of dictators. Dictators often combine the three major powers of legislative, executive, and judicial powers, which can easily lead to abuse of power. In terms of legal theory, the definition and types of law, the relationship between law and various things, the theory of criminal law and civil law, and the theory of legislation are described. Montesquieu believes that the law is an inevitable relationship produced by the nature of things, that is, the inherent law between things. Therefore, the law is divided into human law and natural law, and the principle that the legislation should be compatible with the government is proposed. It also talks about the relationship between law and defensive forces, offensive forces, freedom of political systems, civil liberties, climate, soil, trade, religious customs, currency and other things. In the book, economic theory holds that private property rights are the natural rights of human beings. In the determinism of geographical environment, Montesquieu believes that the law should take into account the geographical environment, especially climate, soil, etc., and these factors related to people's personality and feelings.
The book first states that government has an important influence on the ownership of legislative power. Montesquieu believes that the existence of government is directly related to the rule of law. An authoritarian regime means terror, imperiousness, and violence. It has neither law nor current rules. A single person leads everything according to his own will and capricious temperament. Therefore, under an authoritarian regime, there is no legislative power at all. Although the monarchy and the autocracy are governed by a single person, they follow fixed and established laws. Therefore, under the monarchy, the monarch and a few nobles have legislative power. As for the Republican government, it is the government with the highest power held by the entire people or only a part of the people, but it does not mean that there is a rule of law at all. However, there is a basic rule that only the people can make laws, and the power of the people of the Republic is relatively equal. The three polities are also of great significance to the simplification of the law, the legal system, and the content of the law.
The most prominent manifestation of the three polities should be that people's degrees of freedom are completely different. In the book "On the Spirit of Law," Montesquieu emphasized the unity of law and freedom.
Article 3: Feeling 1500 words after reading "On the Spirit of the Law"
Or the relationship between law and various polities, customs, climates, religions, businesses, etc. The author's latest research on Roman succession law, French law and feudal law is included in the book "On the Spirit of Law" Subtitle, when I saw this sentence, I wondered why this book would last for more than 200 years.
The passage in the preface also has an effective reminder of my state of reading and thinking: I have a request, but I am afraid that I will not be allowed, that is, do n’t just flip through a few pages and spend two Decades of painstakingly written work asserted that the whole work should be praised or dismissed, not just a few of them. If you want to find out the author's intention, you can only find out by reading the entire book.
"On the Spirit of Law" mainly involves the doctrine of government, the theory of separation of powers, geography, economic theory, and religion. It seems that the deepest feelings are not about the separation of the three powers, but about the influence of climate, soil, and geography on human spirit, temperament, and even living habits, moral customs, and economics, which in turn affect family life, political systems, and religion Wait. Here, I would like to discuss with some excerpts from reading and my own thoughts.
Montesquieu is good at grasping his understanding of law in the nature of various things. He believes that, in a broad sense, law is an inevitable relationship produced by the nature of things, and everything has its own law. At the same time, he divided law into two parts: natural law and artificial law. Instead of the divine rationality emphasized in medieval Aquinas theological jurisprudence, Montesquieu proposed that a fundamental rationality exists in the world. Although he did not have a clear explanation, but looking at this book, we can see that this fundamental reason is that the nature of different things necessarily produces different relationships and the basic law of the corresponding law.
Montesquieu asserted that law is the relationship between this fundamental rationality and each being, and also the relationship between beings. According to this, he believes that human beings first lived in a natural state, and there was no state or state-made law. At that time, natural law governed people's behavior. The first three axioms: peace, finding food, and natural admiration. In the state of nature, people feel weak, timid and inferior. The first thing that comes to mind is how to save lives and reproduce offspring, instead of attacking each other, people are afraid of each other and thus get close to each other. He believed that natural laws existed before all laws, and they simply originated from the essence of our lives. The inquiry into the nature of life will return to the state of nature before the establishment of society. Natural law is the law accepted by humans in such a state. Human existence does not depend on social state, or more precisely, human being can be an existence that does not need to depend on social state.
While emphasizing that natural law is one of the manifestations of fundamental rationality, Montesquieu believes that human beings do not need to conclude a social contract, but because of their natural nature and the laws of natural law that are willing to live a social life, they enter society and establish a country. (The fragility of human beings, and the natural forces such as the love and desire to live a social life between each other, motivate them to form a society.) This is another unique feature. Montesquieu is the only thinker in the classical school of law who denies social contract theory.
After human beings have formed a nation in a united society, they have shaken off their sense of weakness and began to feel their own strength. As life unfolds, humanity gains the knowledge of competing for interest. In addition, as an intelligent being, people constantly violate the laws established by God. As a sentient animal, he is governed by thousands of passions, and cannot be immune to ignorance and error. Therefore, he can always forget his creator and forget him. Oneself, forgetting the other party, produced a war, and the war violated the principles of natural law. Therefore, human beings must remember their own sense of common existence and restrict themselves by enacting artificial law. Therefore, what the "On the Spirit of Law" is about to reveal is a kind of existential knowledge about the state. In Montesquieu's own words, it is to show human beings their own nature and awaken them to feel their own nature. The purpose is to enable people to live in a peaceful society, a rich society. This kind of richness must make the social existence of man, or the existence of the state and the natural existence of man, so that man can exert the greatest initiative.
In The Spirit of Law, Montessori spent a full six chapters discussing the relationship between law and geography. He believes that the geographical environment, especially the climate, soil and land area, has a very important influence on the character, customs, moral and spiritual outlook of a nation and the legal system. If spiritual temperament and inner feelings are truly extremely different due to different climates, the law should have a certain relationship with these emotional differences and these temperament differences. Human beings are different due to climate differences, and the impact of climate is the most powerful of all impacts. Montesquieu first started by observing the impact of temperature on the human body, and explained the impact of climate on the human body.
The cold air tightens the ends of the fibers outside our body. This increases the elasticity of the ends of the fibers and helps the blood return to the heart from these ends. Cold air also reduces the length of these fibers, thus increasing their strength. Conversely, the hot air relaxes the ends of the fibers, causing them to stretch, thus reducing their strength and elasticity. So people have more energy in the cold climate. The action of the heart and the response of the fiber ends are strong, the secretion is more balanced, and the blood is more conducive to the atrium. Under the influence of interaction, the heart has greater strength. The enhancement of heart strength naturally has many effects, for example, a stronger self-confidence, that is, a greater courage to have a better understanding of their superiority, that is, a desire to avenge less on yourself Has a strong sense of security, that is, more straightforward, less suspicion, strategy and trickery. As a result, of course, a very different personality is produced.
Montesquieu also uses the climate to explain people ’s drinking habits and laws that prohibit them. In cold countries, the water in the blood is rarely excreted by sweating, so that the water accumulates very much in the blood. Drinking strong alcohol that can accelerate blood circulation is suitable for people there, so northerners have a big drink habit. In hot countries, the amount of water in the blood is greatly reduced due to sweating, so a similar fluid supplement is needed. Therefore, people develop the habit of drinking water. In countries where alcohol is harmful to health, indulgence is more severely punished than in other countries. The climate also affects the precepts of various religions, such as the prohibition on slaughtering cattle and eating beef. Reincarnation is created by adapting to the climate of India. There, the flames of the scorching sun burned the broadly-wrapped fields. People could only feed very few animals, and often there was a shortage of cattle in farming. The cattle did not multiply and often became infected with various diseases. Therefore, religion is protected by precepts, which is the most appropriate for the country's general policy. Since it is forbidden to slaughter cattle as an important work tool as food, people have to eat grains and drink milk. Therefore, in India, it is not unreasonable that the law prohibits cattle eating and slaughtering.
Montesshon also believes that the size of the national residence area is also very closely related to the country's political system. Small countries are suitable for republics, medium countries are suitable for monarchies, and large empires are suitable for autocracies. When talking about slavery in Asia and freedom in Europe, he used the natural factor of the size of the country to explain it. There are some great empires in Asia. They appear on the vast plains. Under such geographical conditions, in order to prevent the formation of secession, only authoritarian systems can be implemented, and only an extremely harsh form of slavery can be implemented. In contrast, in Europe, natural divisions have formed many small and large countries. In these countries, the rule of law is good for the protection of the country. Without the rule of law, the country will be corrupted and degraded, and it cannot be compared with all neighboring countries. Here, a characteristic of freedom is formed, and this characteristic of freedom is extremely difficult to yield to outside forces except through business.
For the writings of the sages, we have only pious, pious face, pious thought. As French scholar Laurent Versini puts it, if the sages of the world's roads are also distinguished, then "The Spirit of the Law" is the most gifted of all the works of French Enlightenment thinkers .
Chapter Four: The Spirit of Reading the Law 1000 Notes
What is the highest state of justice? Montesquieu's The Spirit of the Law answers this question. Unlike ordinary legal scholars who are mainly satisfied with the interpretation of legal provisions, he seeks to study the spirit of law from aspects other than law, from history, life, customs, etc., and to explore this spirit in politics and law from social progress. It plays an important role and general law in other aspects, and explores the spiritual essence of law from the general connection between law and other things, that is, the highest realm of law. His thinking actually transcended the difference between the civil law system and the common law system, and looked at the value of law at another level. Because the value of fairness and justice as law is universal in both common law countries and civil law countries. Although people have different understandings of justice, as a value, justice should be above the law, not the other way around.
1. The spirit of law is a comprehensive concept, not the law itself
A superficial and superficial understanding of the law and its mechanical application in judicial practice are the primary realm of judicial workers. To deeply understand the highest state of justice, we must understand what is the spirit of the law? Montesquieu called his representative work the "spiritual spirit", which means that law should be related to the natural state of the country; related to cold, hot, and warm climates; and the quality, situation, and Area has a relationship; it has something to do with the lifestyles of various people such as farmers, hunters, and herdsmen. The law should be related to the degree of freedom tolerated by the political system; it should be compatible with the religion, sexuality, wealth, population, trade, customs and habits of the residents. Finally, there is a relationship between the law and the law, the law and their origins, the purpose of the legislator, and the order of the things on which the law is based. The law should be examined from all these perspectives. Taken together, these relationships constitute the spirit of the so-called law. The pursuit of judicial justice requires the study of the spirit of the law, not the law itself. How to effectively combine the factors of law with social factors and fair justice is the realm that every high-level judge wants to pursue.
The spirit of law and fairness and justice
But how to understand its connotation, and be able to use the law in handling a case proficiently, to truly achieve justice among the parties is difficult to grasp in practice. Because it is impossible to satisfy both parties with the result of the adjudication, there will always be a losing party. However, trying to be fair is a matter that judges can do. In judicial practice, when the legal provisions are clear, simply applying the law to adjudicate, ordinary judges can do it. At this time, the judge only needs to input the facts of the case into the legal machine, and then the judgement can be output. This is the result that ordinary judges want to pursue, but this result is by no means the judicial realm that a high-quality judge wants to pursue, because doing so does not reflect the level of justice it deserves, nor does it mean that justice is achieved. Especially when the legal provisions are unclear or there are loopholes, how to achieve judicial justice in front of the parties is not only a difficult problem for the judges, but also reflects the high level of case handling. Montesquieu's legal thought is very helpful for legal professionals to understand judicial justice, because he believes that the law always encounters the feelings and prejudices of legislators. Sometimes the law goes too far, and it is only colored with emotions and prejudices; sometimes it stops and mixes with emotions and prejudices. It can be seen that Montesquieu recognizes that laws are often associated with feelings and sometimes conflicts. What to do in this case? He believes that the law cannot go too far and only starts from feelings. All first-class judges, like Zen masters, are trying to pursue a realm at this time. He must accurately grasp the spiritual essence of the law and give the parties a fair judgment.
The spirit of law and strict law enforcement
According to Montesquieu, if there are too many exceptions to the law, it will actually undermine the rules of the law and the consequences will be endless. He gave an example: Charles VII stated that he was informed that in areas where customs were the norm, litigants violated Kingdom's customs and appealed after a case was judged three, four or six months; therefore he provided that unless the prosecutor had Fraud or fraud, or there are significant and obvious reasons preventing the party from prosecution, the party should immediately sue. Because of the exception, the parties were still appealing after 30 years.
In judicial practice, when laws conflict with sentiment, law enforcement officers are often confused and troublesome, and it is easiest for them to turn a blind eye to specific and clear legal provisions, make an exception, and make judgments based on sentiment law. This arbitrary exercise of discretionary power actually denies the seriousness and authority of the law, and is not a method of equitable or legitimate departure from the law. Under the modern democratic system, judicial justice is an important content of the construction of the rule of law. It is closely related to the concept of strictly handling cases in accordance with the law. To strictly handle cases in accordance with the law, the conflict between law and situation must be properly handled.
Should we consider the rational factors? Judges must consider it when adjudicating, but insisting on handling cases strictly in accordance with the law is the first prerequisite, and the dignity of the entire rule of law cannot be compromised for the reasonableness of adjudicating individual cases. When a judge encounters a conflict between law and situation, it is not without good policy. Only by abandoning the use of machinery prescribed by law and considering the social factors comprehensively under the premise of insisting on handling the case strictly according to law, can a proper solution be found.
To reach such a state is not easy, it requires a long-term grind and perseverance, and the judge's tireless pursuit of truth. Judges need to have profound knowledge other than law and become intellectual nobles. In order to pursue the lofty ideals of justice, judges must adhere to their beliefs for a long time. Aristocracy. Montesquieu's "On the Spirit of the Law" perfectly explains this.
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