Legal Certainty

The thesis of this desertation is the certainy of law, including its intention and extention, and the machanism of its realization . The desertation will attempt to disclose that the compromise, a concept of Discourse Theory, is the core to connectting the three key factors of morden law, Which are the fact, the logic and the value of law. The desertation can be regarded as a topic of methodology of civil law.The desertation contains five chapter: Chapter 1 is the introduction, which will discuss the relative concepts of the certainty of law. Chapter 2, Chapter 3 and Chapter 4 will elaborate the relationship between the certainty of law and the freedom of contract, the logical rational of law and the practical rational of law. Chapter 5 is the conclusion, will discuss the inspiration drawed from the issue of the certainty of law, which of great significance to the establishment of the contractual order in China.The contents of Chapter 1 include the intention and extention of the certainty of law; the ralative concept, including legality and legitamacy of law, objectivity and correctness of law,Iogical rational and the practical rational of law. The certainty of law is a core topic of legal methodology which attracted many jurist's attention over the past centuries. The above concepts are the elaborations of the certainty of law. The intention of the certainty of law is that the people can draw a certain conculusion by predicting the result of a certain case. Correspondenly, the extention of the certainty of law includes the certainty of the legal fact of a case, the certainty of the text of law and the certainty of judicial procedure.If the outcome of a legal decision is within the periphery of reasonable expection based on the people's predictability, it siginity that the law has the nature of certainty. Firstly, in terms of the certainty of the text of law, only those texts which possess the features of generality, consistency, clearness andintegration can meet the requirments of logical rational. Secondly, as regarding the certainty of the fact of a case, although that the evidence is of great importance,the more essential factor is the suhsumption, by interprating the law to contruct the fact.The construction of a fact (i.e. a contract) are always a matter of interpretation of the law which include the judgement of values. Inevitably it will involves the problem of certainty and objectivity . Further more, the certainty of law include the certainty of judge's decision, which is the core of the certainty of law. Nevertheless, Some scholars only paid their attention to the judges who made the decision and neglected the influnce given by other readers of the text of law. The certainty of the three factorscould not be separated.From the start point of whether we can get a correct anwser by legal reasoning, the desertation analysises the relationship between objectivity and correctness,legality and legitmacy, logical rational and practical rational. As for the correctness, if a legal decision can complies with the standards of an external objectivity, therefore it can get the correctness in the sense of epistemology. Here ,it is merely a matter of judgement of fact which always used in logical reasoning. If it is impossible for a legal decision to meet the standards of an external objectivity, we have to select a conflict answer by comparing the value, correctness is a matter of value judgement, which mainly be used in practical reasoning. Legality refer to complying with the law, while legitimacy is above the law, which may get from moral introspection, natural law or life wisdom and experiences, or the compromise made by people. The conflict between the legality and legitimacy can make people keeping a capability of self-examination. We should not mixed the legality with morals, however, we should not sperate them as well. Only in the case of satisfying substance justice morals standards can be refered. However, the reference to morals standards must meet the requirments of logical reasoning. The logical r...