| Currently the Chinese jurisprudence circle carries out far more studies on legal norms than on legal concepts. An important reason for this phenomenon perhaps is the influence of "normativism in legal theory". A strong version of this theory holds that, legal concepts have no meaning in themselves and thus no semantic references on their own, but are determined or even exhausted by the legal norms in which they are contained. We can use nature theory and function theory about legal concepts to refute this standpoint. In general sense, concepts are mental presentations of properties of things in human conception. As a tool of thinking, they could neither be reduced to words, nor be determined and exhausted by norms at the linguistic level. In the legal context, the semantic reference of a legal concept is a legal fact in the sense of institutional fact, and cannot be given any meaning by the pure inferential analysis of norms. Legal concepts play a primary role in legal reasoning:it is often the interpreters themselves who have to substantiate or concretize the semantics of a legal concept; specific legal concepts are the premise of special legal consequences; the semantics of legal concepts also delimits teleological arguments or imposes burden of argumentation on the latter, thereby constituting the basis of legal norms and the key links in both legal thoughts and reasoning. Now it is time for scholars in jurisprudence to enhance the studies on general juristic theory by focusing on legal concepts again. |
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