There is an old Chinese saying that says, “Those who let themselves be guided by the current course of events are real heroes.” In English, its counterpart is that, “it is as well to know which way the wind blows.” It is this dissertation author’s opinion that one cannot understand Frank and his modern mind without the context. Here, the “time”
is not limited to the international and external political situations, but also includes his personal experience. One could make the following conclusions.
Above all, beyond what Frank expressed in his works, theoretical origins and decisions, it is necessary to understand Frank’s experience. This is the case because there are some certain causal relationships between his personal experience and his theoretical choices of psychoanalyses, father worship, and legal uncertainty. Frank’s family background, such as being raised by a strict father and mother, determined his understanding of orders; Frank’s emphasis on fact- finding was influenced by his special suspected experience. Frank’s effective psychotherapy experience and the political reformation cultivated in his early age made him believe that the psychological method would become more and more impo rtant in the following days. Frank had an elite complex. Frank had been at the top since he was a child, and the same situation continued on when he began to work.
This personal experience could not avoid aggravating Frank’s superiority complex and extreme optimism about the judges and the legal communities, who played the role of the main force in the grant legal reformation. O n the other hand, it was inevitable for Frank to have some doubts about the capacity of ordinary people, though he had a grant reform democratic purpose. That is the reason why Frank demonstrated conflicting
dimensions on advocating the role of outstanding and humble judges in judicial system, but criticizing the “philosopher kings” of Plato’s political idea.
In addition, because of Frank’s abundant administrative experience and legal practice experience, it was hard for him to identify a clear boundary of politics and law, although there are some common features in these two subjects. In this regard, one cannot just take Frank as a pure legal theorist or a pure politician, especially when one analyzes his role in American jurisprudence. All of these complex factors make up a complex Frank and his theory of modern mind, which was structured by the constructive skepticism system in philosophy for the purpose of legal reform. That is what the author has done in this dissertation.
Compared to Frank’s volumes of citations in his works, this dissertation is just at the beginning of research. After numerous hours have been put into this field, this dissertation author has many immature opinions on this issue. First of all, by reading Frank and his background, the author learned how to choose a theoretical issue as a legal researcher. Although the scholar should take a value- free attitude in his research, he still has to choose a theoretical starting point before he does his research. Frank took the starting point of firm liberal and humanis m in his theory and legal practice. To respect human beings, to evaluate the subjective initiative of human beings, are of the core of modern mind. It is also a fresh point rather than an out-of-fashion platitude.
In Frank’s time, a well-developed and highly-institutionalized society existed at the cost of the values and dignities of ordinary people, though the social institutions were created for the purpose of ideal justice. However, many people forget to keep their eyes open in regard to how it operates and what are their emotional feelings after the institution is built up by reason.
Once one is used to the institution and its operation, misfortune may follow subsequently. Because of the inherent inertias and abandoning of criticisms and questions about the institution, the institution tends to become a leviathan that paralyzes our emotions, infringes on one’s values and deprives one’s rights in the name of reason and justice. That is what Hannah Arendt calls “the banality of evil.” The moment one abandons questioning and resisting is the beginning of the loss of substantial justice.
There are the theoretic concerns of Frank and his modern mind. The worries take place in the judicial system of America, for example, the Dred Scott Case and the Lochner v.
New York case. Of course, one may argue the reason why judges who are considered as the guardian angels for freedom make such decisions, but what one should pay more attention to is why a well-designed institution goes wrong. Therefore, Frank promoted modern mind as a response to these problems.
In Frank’s opinion, the only approach to avoiding this evil consequence was to evaluate the human factor in the judicial process. Rather than totally denying the formalism or the importance of process, Frank tried to awaken one’s attention to the subjective factors affecting the judicial process, the independent introspections of his colleagues, and the importance of reformation in judicial systems and legal education.
Those are the ways Frank thought injustice could be avoided. Hence, Frank’s his works have two dimensions: pragmatism and idealism. Protecting the precious academic attitudes, this dissertation author takes a sympathetic and understandable attitude to Frank’s criticisms of to legal uncertainties. It should be permitted under an open and democratic environment, especially for these experimental legal reformations. Besides, the following scholars could benefit a lot from Frank’s radical and explosive discussions.
That is why Frank and his modern mind could stand for a long time.
In addition, Frank and his modern mind indicated an academic consciousness in American jurisprudence. It is commonly accepted that legal realism is a real sense of native jurisprudence in legal history. This dissertation author believes it is constructed by conscious striving rather than by a coincidence. A mature political and legal system needs a suitable theory to explain. One could find such a struggling for independence in academics through Frank’s works.
Furthermore, contemporary China could learn a lot from the theory of modern mind during the transformation period. There are volumes of commonalities between China and America at the beginning of the 20th century. Though the reform and opening policies made a huge change in China for many areas, when one faces the social problems in China, such as welfare inequalities, judicial injustice, and needed improvements in protection of civil rights and appeals for further reformation, it is easy to associate what had happened in America. Since Frank and his legal realists’
colleagues were the main forces at that time, it is necessary to dig into their theories and gain some useful understanding.
Above all, only could a social reformation based on a consideration of human beings and the balance between procedural justice and substantial justice last for a long time. This is also the scale of measures of modern mind. Different from the American experience, there is no sophisticated institution and the matched institutional ideals in China, the Chinese have kept building mature political and judicial institutions for more than 30 years. However, one could learn from America, which keeps formalism blindly may threaten individual freedoms and social democracy in the long run. Therefore, a balance between institutional constructions and the pursuit of substantial justice is the key in the following days.
It is necessary to cultivate good people to operate a good judicial system. Frank’s descriptions and standards of ideal judges include humanity, sympathy, individual introspection, creativity, and an open mind.
Last, but not least, the self-consciousness of the legal community is an important consideration. For China, the law systems and the theories behind them are Western imports. The legal community in China should keep self-consciousness in mind while maintaining pace with the developments of westerns.
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