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Judicial Interpretation Of Epistemological Analysis

Posted on:2005-12-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:M H LiFull Text:PDF
GTID:1116360125961386Subject:Modern legal theory
Abstract/Summary:PDF Full Text Request
Judiciary power is actually the right to make decisions of the application of abstract legal regulations to concrete cases. The correctness and exactness of judicature, therefore, is related to the success or failure of a legal system. This requires the judge to show his initiatives and to avoid arbitrariness, and judiciary interpretation is the basic device and process keeping correct judgments. So this thesis holds that judiciary interpretation is a category in epistemology, whose essence is to control the initiatives of the judge by means of interpretation, demonstration and argumentation, so as to make legal decisions objective, specific and explicit cognitive activities and processes. So it is necessary to explore the general contents and internal rules of judiciary interpretation from an epistemological perspective.Judicature is the subjective activity of the judge, and judiciary interpretation is to regulate the judge's interpretation and cognition institutionally. Judiciary interpretation itself is epistemological in nature, but it does not refer to the reflective binary subject-object cognition of the judge towards the law, but the interpretative and applicative cognition of the legislator's products of their legal awareness, i.e. the law. From the perspective of epistemology, judiciary interpretation requires not only the interpretation of laws, but also the interpretation of the contents and truthfulness of the legislator's legal awareness. Thus, the epistemology of judiciary interpretation is basically how to understand and ascertain the consistence between the exactness and correctness of laws. The epistemology of judiciary has been closely related to the development of philosophical epistemology. The emergence and development of judiciary interpretation correspond to the history of western philosophical epistemology, and the basic contents of judiciary interpretation were determined by the corresponding elements in philosophical epistemology. In accordance with the history of epistemology, this trend of thought is divided into four periods: the divine law and ancient natural law period; the classic natural law period; demonstrative analysis law period and modern law period. The basic contents, epistemological structure and operative mechanisms differed from one period to another.Under the guidance of Marxism, with reference to western history of judiciary interpretation, this thesis elaborates the four elements of modern forensic interpretation, dual cognitive structure and the mechanism of the two-way interactions between the judge and the legislator and between the law and the fact It argues the distinctive feature of judiciary epistemology: judiciary interpretation is the unity of cognition and practice; the unity of factual cognition, regulative cognition and evaluative cognition; the unity of comprehension, interpretation, argumentation and application; and judiciary interpretation theories should be the unity of subjectivity and epistemology, which requires the unity of evidence and regulations, and the unity of legal subjectivity and epistemology.Based on these ideas, this thesis propounds the epistemological foundation to establish the subjective statuses of the legislator and the judge in the process of judiciary interpretation and the conditions in which they can play their roles. The legislator can only accomplish truthful legal products by truthfully reflecting the internal relationships between the law and the social evidence; meanwhile, the judge can only display his initiatives by following the dual internal-external restrictions. The author finally points out that there is an internal relationship between judiciary interpretation and objective law, and between fact and law. This internal relationship determines that the law is a unity of correctness and exactness. Therefore, judiciary interpretation requires the internal consistence not only between the evidence and regulations in subjectivity, but also between the evidence and regulations in epistemology and concrete cases.
Keywords/Search Tags:judiciary interpretation, epistemology, essence
PDF Full Text Request
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