[author]He Xin
[content]
A Preliminary Comparison between Social Science Law and Legal Doctrine: Starting from "Children's Best Interests"
*Author He Xin
Abstract: This article focuses on the "best interests of children" in Child custody to explain that law is not an independent and closed system. The basic principles of law themselves and their content are constantly changing; Research based on China's judicial practice also proves that once external forces intervene in the judiciary, the original intention of legal principles will be ignored. The numerous new issues in custody also make the principle of "best interests of the child" difficult to deal with. The doctrine of law, which firmly believes in legal autonomy, cannot self coordinate and become a consistent system; The ideals it talks about - whether they are prior principles or best international practices - are often utopian.
But law knows national boundaries. Due to different national conditions, different legal systems, and different stages of legal development, the legal issues faced are also different. This article reiterates that law is not an autonomous and closed system, which is the fundamental difference between these two legal approaches. In order to avoid the suspicion of repeating the old tune, this article will specifically focus on the "best interests of children" in Child custody. The basic principles of law, including its content, are constantly changing; Research based on judicial practice in China has shown that once external forces intervene in the judiciary, the original intention of legal principles will be ignored. Therefore, the doctrine of law that firmly believes in legal autonomy cannot self coordinate and become a consistent system; The ideals it talks about - whether they are prior principles or best international practices - are often utopian.
1、 Full or non-existent visitation rights
There was a debate in the divorce law of the United States about the right to visitation in child rearing. When a couple divorces, should the party who has not obtained custody be granted the right to visit underage children? In 1973, the highly influential "Beyond the Best Interests of Children" collaboration between three law professors, independent analysts, and psychiatrists wrote:
Once it is decided (by agreement between the divorce parties or, in the absence of an agreement, by the court) that the father or mother has custody, it will be up to this party - not the court - to decide under what conditions the child will be raised. In this way, the party without custody has no legally enforceable right to visit the child, while the party with custody has the right to decide whether these visitation rights are needed.
In summary, the suggestion regarding visitation rights is' either all or none '. Once you have custody rights, you have 100% right to raise your child in your own way, including whether to grant visitation rights to the other party. The authors believe that "it is necessary to ensure that children after divorce have at least a substantial and undisturbed psychological connection with one parent". In other words, children from divorced families do not need to contact the other parents anymore, as such contact can bring unnecessary interference to the children's growth. Secondly, the implementation of visitation rights is very cumbersome and complex, and there will be changes in the future, bringing endless problems to courts and law enforcement agencies. 'All or nothing' will solve this problem once and for all: once one party obtains custody, the other party's visitation rights are completely in his or her hands and cannot be changed. In this way, the number of related cases in the court will be greatly reduced.
The question is, what is the 'best interests of children'? Is it best to completely decide by parents with custody? From an empirical perspective, there were some psychological studies at that time that showed that maintaining a certain degree of connection between children and those who did not receive custody, feeling the presence and care of a father or mother, was beneficial for children's physical and mental development. Furthermore, does canceling visitation rights really reduce disputes? How will divorced parents choose once they have "all or nothing" custody? In real life, not all divorced parents must have custody. Some have strong desires, while others have weak desires. People with strong intentions will naturally strive for it with all their might, while those with weak intentions may retreat despite difficulties, especially if they can receive compensation in other ways. But when custody is all or nothing, the person with weak intentions is also unwilling to completely give up custody, because this means that she or he will forever lose access, lose contact with the child, and even erase the child from her or his life. This is difficult for many parents and their family members to accept. Therefore, in the all-or-nothing mode, even those who do not have a strong desire for custody will go all out to fight for it. In this way, lawsuits related to custody rights will not decrease, but will only increase. Moreover, when the right to visit is entirely determined by the other party, the party without the right to visit is even less willing to pay maintenance fees - they do not even have the right to visit.
The analysis of Law and economics further reveals the fallacy of "all or nothing" of visitation rights. When marriage cannot be saved, the dispute in divorce litigation is nothing but two: property rights and custody rights. Under the assumption of economics on people, these two can be interchanged: one party can give up some property rights and obtain more custody rights; The reverse is also true. If property rights are the horizontal axis and custody is the vertical axis, the choice of parent or parent will form a Indifference curve in coordinates. When the visitation right is allowed to exist, the intersection of the two Indifference curve of both parents is the best answer for both parties to resolve the divorce lawsuit. Through consultation, both parties can find countless such answers. When the law forcibly cancels the right to visit, it is equivalent to turning the Indifference curve into two points on the horizontal and vertical axes, either having all custody or losing all custody. Such legal provisions are equivalent to compressing infinite possibilities into two alternative options, forcing the parties involved onto the path of litigation.
2、 What is the best interest of children?
In the above debate, the application of legal doctrine is really limited. The scope of visitation right cannot be answered only according to Aristotelian logic. When the content of principles constantly changes, legal reasoning must constantly change. And reasoning alone cannot explain why this change occurs. A fundamental challenge faced by legal doctrine is that the premise it relies on - the principles of law - is constantly changing.
In fact, the content of the principle of the best interests of the child has undergone significant changes in history. According to Friedman's research, the 19th century was a watershed: before that, divorce and separation were rare in Europe and the United States, let alone Child custody. Recorded British archives indicate that divorce mostly occurs in upper class society, and children are usually awarded to their fathers because they are unquestionable parents and their rights far exceed those of their mothers. He is the master of the child; Children are his property. At that time, it was based on theology and Natural law: children were gifts from God to men, and were part of the natural order. These fathers do not personally take care of minors, they only arrange for relatives or servants to take care of them. At this point, there is no best interest for children to speak of. But in the 19th century, a large number of divorces took place among ordinary people. Theology as a basis declined, and Natural law took its place. However, the Natural law at this time negates the Natural law of the past: it used to favor the father's order, and then "children's best" dominated. From a textual perspective, this principle does not lean towards the father or mother, but the court's judgment gradually shifts towards the mother. As a legislative request for New York states: There is nothing more generous, strong, and sustained in human love than maternal love. "Mothers are the ones who truly take care of underage children; Children need mothers more than fathers. The needs of children - the interests of children are separated from the interests of parents and have independent significance.
Mainly due to the decline of patriarchy, custody has shifted from father to mother. But the development trajectory of different countries and regions is not the same. In Taiwan, China, before the 1990s, custody was basically given to the father; It was not until 1994 that this rule was declared unconstitutional due to discrimination against women and the principle of "best interests of the child" was introduced. From then on, the vast majority of divorced women gained custody.
But this trend is not absolute either. Starting from the last 30 years of the 20th century, the special position of mother in the natural order was challenged by social sciences. As "no fault divorce" swept across the United States, the Divorce demography soared, and custody disputes became commonplace. Poverty is no longer a decisive factor. 'Psychological parents' have become the keyword - which side has more emotional connections with the child. After the rise of psychology and social engineering, the priority of mothers was almost wiped out.
China joined the United Nations Convention on the Rights of the Child as early as 1992, one of which is the "principle of the best interests of the child". However, in the domestic law on custody, the principle of "most beneficial to minors" was determined in the Civil code (Article 1084) in 2020. Before that, the Marriage Law amended in 2001 only pointed out that if the two parties could not dispute the custody of their Child custody after breast-feeding, "the judgment shall be made according to the children's rights and interests and the specific conditions of both parties."
Even if determined as a principle, what are the contents and standards of "the most advantageous for minors"? The law and the judicial interpretation of the Supreme People's Court are both vague. Can children know what their best interests are? How do children defend their own interests? The Civil code has added new provisions to require respect for the true wishes of minors over 8 years of age. But what is the true intention of underage children? The most beneficial principle for minors seems to be to hand over their rights from their parents to their children, but minors still live under their parents' physical power and cannot escape their parents' interests. In fact, if the law so stipulates, it is fundamentally because the state forcibly inserts its own "interests" and "values" and "imposes them on parents and children".
For example, the interpretation of the Supreme People's Court on the application of the Civil code: Marriage and Family Code clearly adds Chinese traditional cultural factors. Losing Fertility when both parties are unable to argue; If there are no other children and the other party has other children, they can receive "priority consideration" (Article 46). Is this based on the best interests of minors or parents?
A rough outline of the principle of the best interests of children reveals that this principle is a product of history and various specific legal domains. For a long time in human history, there was no such principle at all; Moreover, the content of this principle has been constantly changing and has emerged from experience. Visiting rights are a new thing. In fact, this is not only the development history of the principle of the best interests of the child, but also all legal principles that are taken for granted. For example, as stated in the preamble of the Preamble to the United States Constitution, "it is self-evident that all men are born equal". But the 'human' in the concept of equality for all is limited to adult white men with property. This "person" does not include "Coloureds, women and children". In the field of marriage law, the standards of equality between men and women, freedom of divorce, freedom of marriage, and divorce - the principles of true broken feelings between husband and wife, mediation, fairness and justice, and Public policy doctrine - are all changed by time, policy, even region, court, or judge. If legal doctrine pursues the "should" of law, this "should" itself is constantly changing and difficult to determine. Among these principles, different contents can be inserted, some are old bottles of new wine, and some are simply replacing all the bottles with wine.
3、 Children or judges' best interests
Not only is the "best interests of the child" constantly changing in content, but it is often overlooked in judicial practice in China. The upbringing conditions of parents are originally important standards, but they are often overlooked by other considerations. The custody of a mother can easily become a bargaining chip for both parties to sacrifice. In mediation led by judges, the best interests of minors may even become the "best interests of judges".
Literally, the best interests of children are Gender neutrality. If the principle provision that breastfeeding children are directly raised by their mothers is added, the custody rights of the women should be better protected in legislation. However, a large number of empirical studies show that women are in a disadvantageous position in the fight for Child custody. Through a study of 144 controversial cases regarding custody rights, Han Bao found that when both parties have only one child, the man usually obtains custody rights; When the only child is a boy, the proportion of men receiving custody is higher; When there are more than two children, the man has a higher chance of obtaining older children. Li Ke's research shows that in rural Sichuan, Legal profession often persuade women in divorce cases to give up custody.
If the above are only some statistics, then the process of judicial judgment and mediation will showcase the sacrifice of the woman's custody and the interests of the child. In a divorce case involving railway workers in Shaanxi, the only four year old boy has been living with his mother and grandparents in Sichuan. Due to long-term separation and economic issues, the two parties have conflicts, and the woman has filed for divorce, but the man does not agree. He not only insulted the woman, but also had a rude attitude towards the judge. He stated that if divorced, he must have custody of the child. The problem is that the man is a road worker who has been living without a fixed place for many years and has no ability to raise children. When the young judge who led the case asked her presiding judge for advice on how to handle the case, the presiding judge said:
This marriage cannot be sustained. But the custody of the child should be given to the man. Look at his angry face, how fierce it was towards that woman and all the people present. For a man living away from home, a divorce verdict means he has lost his family. Granting custody to the woman means that the man has also lost his child, adding insult to injury. He lost both his family and son, you don't know what he will do. And he won't easily let that woman go. You must make him win a battle; Otherwise, it is a safe policy to make a judgment without leaving.
In the end, the judge ruled for divorce, but gave the boy's custody to his father. This means that the boy will leave his mother and grandparents who have been living with him since birth and switch to living with unfamiliar grandparents. The judge's consideration is clearly not in the best interests of the boy, but rather in the outcome of the case, which should be 'safety first'. In order to appease the man who disagrees with the divorce but may not let go of that woman, the child's interests have become a sacrificial chip. Doing so is a "safe policy" for judges. Obviously, the judge's own interests outweigh the interests of the child.
The process of judgment is like this, and the mediation process will only be worse because the judge does not need to leave written records. They will increase their pressure on the vulnerable party, usually the female, in order to handle the case. In another case in Shaanxi, the man was a rural unemployed thug and the woman was a primary school teacher. The man also admitted to domestic violence. Regardless of any conditions - financial source, educational level, time spent with children, and any unhealthy habits that are not suitable for raising children - women are more capable than men of raising their four year old daughter. But the urban-rural junction where the man lives is about to face demolition, and having custody of the girl means an additional compensation. Therefore, the man insists on having custody, otherwise he will not consider divorce at all. The judge advised the woman to agree to the preliminary agreement: relinquish custody and divorce first. But then the man and his father made further "unreasonable" demands: the woman had to pay a monthly support fee of 500 yuan because "the man did not have a job, but the woman did. The woman couldn't bear it anymore, and the mediation was deadlocked.
The judge originally sympathized with the woman, but was also at a loss. She finally persuaded the woman to give the man nominal custody, but the woman should actually take care of him. The judge said, "The man doesn't really want custody at all, and he won't come to take care of the child during this period. After a few years when the child gets older and she has her own opinion, the man won't be able to do it anymore. As long as the child doesn't want to live in the man's house, they have no choice." The woman still refused to accept this plan. But what she encountered was the court's standard practice in facing Hard problem of consciousness: delay. Three months later, the woman reluctantly accepted the mediation plan.
In this mediation process, the best interests of children cannot be guaranteed. The mother was clearly a more suitable guardian, but she had to give custody to the man. Although the woman can actually live with the child, this right is not guaranteed by law and is a flexible approach taken by the judge when there is really no way. Moreover, the woman cannot determine what measures the man will take in the future to compete for actual custody, let alone what the outcome of future changes in custody will be. The judge is unlikely to guarantee that she will receive formal legal custody in the future. She will always live in a state of unease for custody.
In mediation, there are many examples of women sacrificing custody for divorce or sacrificing property rights for custody. Another mother lives with two daughters in Shaanxi, and the youngest daughter is a bit autistic. My father works in Xinjiang and has been away from home for a long time. But when they divorced, they demanded custody of one of their daughters. In fact, the father did not really need it, just to seek psychological balance. When a divorced couple has two underage children, the one-on-one distribution plan is a common practice in judicial practice. Finally, the woman voluntarily gave up a commercial house in Xi'an that originally belonged to her mother's family in order to prevent the two daughters from separating during the mediation process.
According to the law, the three elements of divorce - divorce or not, property rights, and Child custody - are independent of each other. The legal standard for divorce is whether emotions have completely broken down; Regarding common property, the principle of division is to take care of children, the wife, and the innocent party; Regarding the right to custody, the principle is in favor of minors. The decision on each issue does not affect the decision on the other two issues. Although from a procedural perspective, the issue of dividing property and custody only arises when a divorce decision is made, substantive decisions should not interfere with each other: for example, the division of property rights and custody is independent; But in mediation, the judge inevitably considers three issues together. One party needs to oppress the other party to make concessions on the other two items in order to obtain one of them. For judges, these three are chips that can exert pressure on the parties and achieve mediation. When one party is unwilling to divorce, it will make the other party compromise on property rights and custody rights; When one party insists on custody rights, they must make concessions on property and divorce issues. Under the label of "agreement" between both parties, the principle that is most beneficial to minors is easily falsified.
The principle that permeates into the interests of minors is the consideration of judges. Judges need to quickly and effectively close the case, and cannot allow the parties to constantly appeal, petition, or engage in malicious incidents that affect social stability. The judge must find a way to appease the dissatisfied party and calm the situation. In theory, the model of judicial mediation is a process coordinated by judges and negotiated by both parties. The judicial mediation in real operation is tripartite: the judge is not a neutral coordinator, but a very important party among the three parties, with their own interests and goals. The result of tripartite interaction will lead to the alienation of legislative intent. Just as the divorce standard of "whether emotions have indeed broken down" is ridiculously replaced by the number of divorce applications or the occurrence of malicious events, the "most beneficial to minors" in custody is to some extent replaced by the "most beneficial to judges".
Therefore, legal principles cannot be isolated from society. Friedman asserts that "social forces shape the legal order. Law is not, and has never been, an independent kingdom. It cannot live in its own world. The legal system is a part of society; it needs to fit society, just like a glove needs to fit the hand." Fundamentally, law and the legal system are not a set of autonomous and closed systems, and they are not even partially autonomous. "What the legal system needs to respond to is not abstract problems, not mathematical, physical or chemical problems. It needs to solve or deal with problems in the real world. But these problems exist in a specific society, not in all societies and history in an abstract way. More importantly, those facing these problems are living people, who live in the real world and have different social relations with each other".
4、 From the Perspective of Social Science Law
In addition to the perspectives of history and judicial practice, social science law can also provide more perspectives. For example, from a psychological perspective, it is possible to empirically study whether visitation rights can promote the growth of minors. As long as appropriate attention groups are found, strict control is exercised, and given a certain amount of time, psychology can definitely provide answers. Even if the answer is uncertain, it is more persuasive than talking about the principle or rule of "the best interests of the child". In fact, psychology has become the most important discipline in determining custody rights. The opinions of expert witnesses, mainly experts in psychology and mental health, have become important factors affecting custody rights.
From the perspective of feminists, it can be considered that the principle of "the best interests of the child" is actually a perfunctory treatment of women's rights: on the surface, it seems to respect women's custody rights and prioritize maternal love, but in essence, it is differentiated according to male standards, especially the main factor in caring ability - economic status. Generally speaking, men's economic income is higher than that of women, so women often suffer in the struggle for custody. The Judicial Interpretation of the Supreme People's Court on Marriage Department explicitly stipulates (Article 46) that whether there is Fertility is a factor to be considered, which is gender neutral on the surface; But in fact, middle-aged women's ability to remarry and have children is far from comparable to men, resulting in a bias towards men. From a broader perspective, feminist jurisprudence even believes that all laws are simply the language of men, written by men, serving their needs.
Critical law even believes that "the best interests of the child" are actually national standards, defined and implemented by the state, and imposed on parents and minors by the state. This is a highly controversial issue, especially for the indigenous peoples of the United States and Australia. The state requires children to receive education before a certain age, which may seem understandable, but some religions simply do not accept this arrangement. The key is, what kind of education do you receive? What religious classics does the school teach and what religious rituals are held? Who determines the content of the textbook? Is there content about pornography, racial discrimination, and erasing history? In China, the current issue is whether education allows extracurricular tutoring? How much space can training institutions have? How much screen time can minors have per day? How to define people who are useful to society? Is it a high score, prestigious school, high salary, or a creative, self-esteem, and independent personality? On the one hand, the power granted by the procuratorial organs to prosecute minor affairs can reflect the increasing and stronger intervention of the state in minor affairs; On the other hand, it stipulates that the economic status of parents is an important factor in dividing custody rights, which actually evades the responsibility of the state. Why can't the government invest in helping parents who are financially disadvantaged but more suitable for raising children? Or establish a child care center?
From the perspective of discourse analysis, does a judge strengthen a specific discourse power when mediating custody disputes? How is the role of 'parents' strengthened and implemented? Will the dominance of judges change the "best interests of minors"? Is it in line with the principle of "voluntary" mediation? Is the 'freedom of divorce' achieved? Is it causing gender inequality?
From the perspective of social statistics, the distribution of custody rights in judicial practice can be compared. The emergence of a large number of judicial documents provides material for such research. Is there a difference between males and females? In terms of region and period? What is the reason? Is it a change in law, a change in culture, or the degree of professionalization of judges, or the influence of gender? For example, if the principle of "most beneficial to minors" has been determined in the Civil code, has there been any substantial change in the distribution of custody?
Social science and law are numerous, and this article cannot touch on them one by one. But the above discussion is sufficient to demonstrate that social science law can provide a new perspective, and social science has continuously infiltrated into the decision-making of custody rights. When it is realized that the law and its system are not a self closed system, and other political, social, economic, and cultural forces inevitably infiltrate, why should legal research ignore these forces? What is the reason for refusing to learn from other perspectives? Why not study the interaction between these forces and the development of law and the rule of law? What reason is there to reject the achievements of other disciplines?
5、 Jurisprudence in Dealing with Conventional Issues
Su Li pointed out that legal doctrine can more effectively address conventional issues faced by the judiciary, but it is often difficult to deal with new and difficult issues. Why? Because conventional problems are logically derived based on the principles of a certain consensus in society; And when there are new and difficult problems, the principles based on are no longer valid. Kilcombins commented on the doctrine of law as follows:
The interpretation of legal rules is at least partially influenced by the social, political, and moral environment. In fact, some commentators believe that the "correct legal answer" is usually just the "correct moral and political answer" at a specific point in time. Therefore, normative legal rationality is a process that can be manipulated. Every decision is a choice between different rules that are logically consistent with past decisions, but are full of conflicts for current cases.
The key to the problem lies in the fact that 'past decisions are logically self consistent, but current cases are full of conflicts'. In fact, the so-called difficult questions are precisely those that cannot be answered by legal doctrine, such as the classic question of life and death in the US Constitution - whether a fetus is a human being, and whether an abortion is murder; Should suicide or euthanasia be criminalized. Whether the right to visit is in line with the principle of "best interests of the child" is just one example. In the field related to "the best interests of children", new problems emerge one after another due to the revolution in reproductive technology and cultural tolerance for Non-heterosexual. For example, Friedman pursued: Is a surrogate mother a true mother? Should she have the right to care? Is living with her - or with biological fathers who donate sperm, or biological mothers who contribute eggs - the most beneficial for children? Do fathers who have only contributed sperm have the right to reclaim their child's custody? Is anonymity a key difference? Should children be raised by same-sex or transgender partners? For minors, is a stable and caring family environment important, or is it more important to comply with the basic principles of Public policy doctrine? After all, many people believe that homosexuality, same-sex partners, same-sex marriage and transgender people are heretical and evil. Of course, we can believe that under current laws, all such arrangements for surrogacy, same-sex marriage, or partnership are illegal and therefore not recognized. We can even assume that these problems do not exist - obviously this is a 'simple and rough' approach. The fact that different courts in the United States have diverse answers to these questions indicates that legal doctrine is far from prepared and cannot have a consistent standard answer. After these controversies, the doctrine of law naturally produces some principles: for example, socialized parents are superior to biological parents. Even so, it still cannot explain everything and will result in exceptions. Because 'this is for the court to decide on an indecisive question and answer an unsolvable question.' Therefore, when the new question has already crossed the established principles, the logical reasoning within the original framework loses its validity. At this point, new content needs to be added to the original principles, or new principles and exceptions are needed. When new problems arise, cracks appear in the system of legal doctrine, even shaking the foundation of the building.
Hermeneutics is the pillar of legal dogma. Its task is to interpret the contradictions within the law as a coordinated and logical system. Although it is still possible to coordinate in the past, it is difficult to coordinate in the future. Due to the fact that the legal system is a response to reality, it cannot be self appropriate and coordinated in itself. In fact, the law faces real life, but real life is not a logical system that can encompass it. There is too much noise in reality to fit into a basket of doctrines. The conflicting laws and confusing logic are the inherent meaning of the question.
From the perspective of linguistic philosophy, Hart pointed out that every word has ambiguous domains around its core meaning. In the classic example he gave, the phrase 'vehicles' in' no vehicles can enter the park 'is full of ambiguous meanings. This seemingly simple rule requires countless exceptions, even exceptional exceptions, to be explained more clearly. The reason is that new "vehicles" will continue to appear, so that the original definition cannot encompass them. Although some people say that once the purpose of legislation is clear, the meaning of vehicles can be roughly and accurately understood, the issue of the meaning of language itself will never be as clear as the "one size fits all" approach.
In fact, there are often situations where legal doctrine cannot be falsified. When someone chooses the premise and fact of the argument, as long as their logic is also correct, it is basically impossible to deny it. Another researcher may use different premises and facts, and even if they come up with different answers, they cannot falsify the former's research. After all, the premise is already different. Because its answer is within the law, there is no need to consider facts or effects. In addition, due to the different positions, positions, training, and knowledge of different interpreters, their respective interpretations must be different. Isn't the task of a lawyer to find these loopholes and serve the client? These conflicts cannot be explained by logic, let alone eliminated. Therefore, critics can confidently believe that visitation rights should be "all or nothing", as this is the understanding of "the best interests of the child". These assertions are not scientifically composed of solid and objective data, and cannot be tested and measured with effectiveness. When a proposition cannot be falsified, it is at least problematic if it is not Antiscience.
From a logical perspective, the deductive interpretation in legal doctrine is nothing more than a "circular interpretation", which "extracts principles and theories from legal provisions, and then uses these principles and theories to analyze the meaning of legal provisions (such as certain elements) and demonstrate their correct or incorrect application (for tailored case facts)." Dai Xin summarized that "because freedom is necessary, freedom is necessary." In the field of custody rights, If Hermeneutics is the pillar of jurisprudence, then this pillar is also shaking.
In constructing a coordinated and consistent system, legal doctrine is much like theology. The two are indeed related in history. But the premise of theology is not truth or reason, but faith. In the face of faith, reason is unnecessary. When humans think, God laughs. The consistency and coordination of the Bible's system are higher than human understanding. Unfortunately, the doctrine of law does not have such a belief as a support. It had to seek scientific support, but it was far from meeting the standards of science, so it had to take a back seat and claim to be a 'weakly meaningful science'. Rather than claiming to be a 'weak science', it's better to catch the bus of social science and law earlier.
6、 About Ideals
Critics believe that social science law is only about understanding the world and not committed to changing it. It starts from reality and has a tendency to be conservative and acknowledge reality, recognizing that "existence is reasonable", making the "value" and "concept" of law meaningless. In other words, social science law, including empirical law, is "without ideals".
The key question is what kind of ideal to achieve. Changing legislation can be considered a good place to achieve 'ideals' and' values'. In the field of gender equality and the protection of women and children, there has been significant progress in China's legislation. The concept of "domestic violence" first appeared in the amendment to the Marriage Law in 2001, but by 2015, we had a separate "Anti Domestic Violence Law". The "Guidelines for the Trial of Domestic Violence Cases" issued by the Institute of Applied Law of the Supreme People's Court in 2008 is undoubtedly a world leader. The allocation of the burden of proof for domestic violence is more from the perspective of protecting victims, mainly women. But as shown earlier, when custody can be used as a placebo against divorce, these legislation cannot effectively protect the interests of minors. The crux of the lack of protection for women and minors is not in legislation. When the judicial "backyard catches fire," legislation becomes meaningless.
Therefore, in the absence of a clear understanding of the operation of the real system, promoting legislation is at most the first step. Actually, this may just be empty talk about ideals. On the basis of understanding the judiciary, it can be found that without changing certain incentive factors in the judicial system, the purpose of legislation cannot be achieved, because "ideal values" cannot penetrate the judicial process. Therefore, only on the basis of understanding reality can ideals have practical significance. As is well known, some overseas scholars studying Chinese law hold a critical attitude towards the current development of China's rule of law, hoping that China's rule of law will be more "in line with international standards". Some institutions even use this as their purpose of existence. Those so-called "idealistic" scholars, while criticizing the lack of basic human rights protection and due process in China's rule of law, have put forward countless reform suggestions in accordance with the best international practice. If certain criticisms are often applauded, then those suggestions are only constantly criticized in reality.
At the same time, other overseas Chinese law researchers study the reality of the rule of law in China from the perspective of experience and social science, and provide enlightenment to the global rule of law and social Development theory. Indeed, these scholars did not provide any suggestions for "international integration" in their research, but their research provides the most important first-hand material and theory for understanding the operation of the rule of law in China. These studies can provide forward-looking judgments for the development of the rule of law and, at appropriate times, provide a basis for decision-makers. This contrast indicates that ideals without a clear understanding of reality are often wishful thinking, empty, and unfounded.
7、 Conclusion
Using the best interests of children as a prism can reveal the erosion of social science law on legal doctrine. The doctrine of law, allied with theology and Natural law, dominated most of human society. But since the 20th century, social science and law have almost collapsed, and China's judicial practice has also amazed people with the reshaping of the law by external forces. As Holmes said, the future of law belongs to statisticians and economists. Obviously, it is difficult to convince believers in legal doctrine when discussing a certain legal principle. Indeed, on specific issues, a certain research approach may have a comparative advantage. But as long as we face the basic fact that law is not a self closed system, social science law can provide a certain perspective and insight for understanding legal principles. More discussion of these principles will naturally change the ecology of law. There is no road in the world, and as many people walk, it becomes a road
In fact, these two approaches to studying law are not either one or the other, and water and fire are incompatible. The two are not conflicting, but complementary. Social science and law cannot be separated from the basic training of legal doctrine. If you don't understand the most basic doctrinal analysis, you can only say that you are an outsider in law. What else do you do in legal research? Even in certain aspects of law, such as basic education in law and the introduction of legal provisions, legal doctrine has greater influence; However, social science law has a clear advantage in providing new perspectives and understanding.
At least, from the several articles participating in this dialogue in the Chinese Legal Review, it can be seen that there is more consensus than controversy between legal doctrine and social science law. Even the four authors who have been practicing legal doctrine for a long time have not opposed incorporating social science law into the study of legal doctrine. Some of them analyze the role of social science law in legal doctrine (Che Hao, Zhang Xiang), while others emphasize in which field social science law has more influence (Chen Xingliang, Xu Defeng). Scholars who advocate social science law focus on how to do it, whether in the past or in the future (Chen Baifeng, Hou Meng, Su Yeong-chin). In this conversation, there is more consensus:
Legal doctrine is more effective in addressing conventional issues faced by the judiciary; But for new and difficult problems, social science law often provides new perspectives and insights.
Social science law often reflects and challenges the legal principles, rules, and systems that are taken for granted by legal doctrine.
Legalism should maintain an open mind. The combination of the two is the way out for legal research.
I hope that after this dialogue, China's legal system will also leave behind the debate between social science law and legal doctrine.
The original text was published in the fifth issue of China Law Review in 2021. Thanks for the authorization of "legal thoughts" on WeChat official account!