Social Sciences in China (Chinese Edition)

No.4, 2020

 

On the Judicial Application of Legal Theory

(Abstract)

 

Peng Zhongli

 

In a certain sense, legal theory is the law in operation. A judge’s citation of law is in essence the application of legal theory, which in turn promotes innovation in legal theory. Theoretically, the judicial application of legal theory can provide reasons for the reasoning in judgments, authoritative resources for judicial argumentation, and theoretical sources for normative application. From the perspective of practice, empirical studies have found many cases of the application of legal theories in China; it functions to interpret laws, supplement legal loopholes, create legal rules and innovate in legal theories; however, there are many problems in the application of legal theories, including low legal status, vague application conditions, absence of application procedures, and lack of application methods. It is necessary to construct a judicial application system of legal theory through legislation, determine the principles of legislation, define the standards of legal theory, standardize preconditions, follow due procedure, and pay attention to the suitable application of methods. As it is shown by theoretical research and practical exploration, the judicial application system of legal theory in China is very valuable for strengthening judicial reasoning and realizing the acceptability of judicial judgments in the context of current judicial reform, and is a driving mechanism for the evolution of legal theory.