Interpretative Research On Legal Interpretation In Ancient China

With the process of developing Chinese socialist rule of law and the requirement of judicial practice, the scholars become to pay more attention to the law in practice, at the same time, the research on the legal interpretation become more active. The study of legal interpretation on the initial stage in China is through introducing and absorbing the Western theory, and then gradually is carried out in depth. However, the way of this researching, which takes advantage of the Western theory to explain Chinese current legal system, to deal with our problems in the theory and practice, has certain weak point, it is necessary for the digestion and absorption of the Western theory to reorganize and analyze relevant historical achievements of ancient Chinese legal interpretation and to carry out a theoretical summary, it not only can connect with the "cultural fracture" between the history and reality, also can provide the experience of the local community for today's legal interpretation study.The purpose of this article, with aid of the modern theory of legal interpretation, is to show the process which the ancient Chinese judges how to explain law in the judicial practice on the basis of reorganization and analysis of the relevant historical achievements. The "legal interpretation", this article refers to, is defined as a legal technology based on judicial practice. So, this article attempts to reveal the ancient Chinese judges' attitude to the trial norms, and to sum up the technical and practical ways carried out by the ancient judges through the analysis of the ancient cases and the judicial decision in judicial practice, then to show the real situation how the ancient Chinese judges implemented the law, it can provide for the legal interpretation research the experience of the local community in contemporary ChinaThis article has six parts, Introduction is to review the status Quo of research on the legal interpretation of ancient Chinese judicial practice in the current study, and to analyze the value to the study of contemporary legal interpretation, and to make definite the significance of this paper in the theory and practice.The first chapter: "the connotation of legal interpretation in ancient China". as a modern legal jargon, "legal interpretation" is not to be found a corresponding word from ancient Chinese legal words, and the similar word to "legal interpretation" is legal annotation in ancient Chinese legal words . As a result, the research on the ancient Chinese legal interpretation is taken for granted as legal annotation of government authorities in Ancient China in the current study. But this article have an idea that it is inappropriate that the legal annotation is supposed to legal interpretation, because regardless of its form of expression or its content or the status, the legal annotation of government authorities is the important component of the ancient code and an extension of legislative activity, it is only the object of ancient Chinese legal interpretation. Through the theoretical analysis to the extreme point on legal interpretation in judicial practice in the current academic circles, this article thinks, the ancient judge did not strictly apply to restriction from ancient system which restricted judges' discretionary power in the process of judicial practice, though even in the social environrnent filled with the pan-moralism in ancient China, there was also the same demand of unified and definitive Legal order, so that the ancient judges dominated by the Confucian ethics was not haphazard, in the process of the legal application, they brought to trial with the relative consistent way and technology and explained the law. In the ancient Chinese unique environment, the main features of ancient Chinese legal interpretation were: Legal interpreter's Non-professional; the goal of Legal interpretation: the pursuit of Combination of "human sentiment" and "ethics" and law; The form of legal interpretation: thinking highly of the experience and making light of the logic.Chapterâ…¡: " The object of Legal interpretation: the sources of the ancient Chinese law ". This chapter attempts to analyze which the ancient judge choosed the type of referee on the basis of judicial practice, and to settle into the sources of the ancient Chinese law. At the same time, through the analyzing the ancient judges' different attitudes and the ways in the process of selecting different the sources of the law attitude, the sources of the ancient Chinese law are divided into three types by this article: The sources of law by lawmaking; The sources of law by law-recognized; Informal sources of law. Through analyzing particularly the status of informal sources of law and their applicable actuality in the judicial practice, this chapter thinks that the ancient judge choosed from informal sources and established the rules of adjudication on the basis of respect for the written law.Chapterâ…¢: "The principles and methods how to select from sources of law."through the analysis of the principles that ancient judges followed in the process of selecting sources of law, such as Clarifying one's status or position, The distinction between criminal and civil cases and The modifications in a timely manner , this chapter sums up some ways which the ancient judges how to select and establish their referees: Cognition by the reasoning; Skillful interpretation by doping "human sentiment" and "ethics; T The method of analogy and Discovering from the facts of case and so on ,this article refers that the ancient judges groups, despite their legal knowledge were limited, but the pursuit of "citing appropriate legal provisions" in the premise of "the situation in line with the crime", the ancient judges had to select carefully from the numerous and complex legal materials and establish these lawful and reasonable ones. At the same time, because of the long-term training in ethics, as well as the legislative trends of the pan-moralism in entire Empire, so that they also found that the rules with the consistent approaches and thinking, which were a experimental response long-time ethical education and judicial practice.Chapterâ…£: " The judgment and explanation about legal fact." through analyzing the types of evidence which determined facts and their role in the ancient Chinese judicial practice, this chapter refers that the ancient Chinese judges determined facts with "human sentiment" and "ethics" and custom and Experience and knowledge, the standard of proof took on Ineffability With a strong subjective. As a result, in the process of from the case facts to the legal facts, they, on the one hand, Authenticated Legal Facts On the Foundation of the objective truth, on the other hand, they Constructed legal facts On the basis of maintenance of Political and ethics. So the mode that recognizing of legal facts took on a trend of the Practical rationality.Chapterâ…¤: " Interpretation of the Legal norms and its application". First of all, with normative analysis, this article, summing up the Language features of Ancient Chinese Legal norms, refers that the legal interpretation with subjective initiative in the judicial practice was inevitable. At the same time, through positive analysis of a large number of cases in the different time, this chapter points out that the ancient Chinese judges still could stick to literal interpretation within limits, even if the ancient Chinese judges deviated from written law to administer justice, the goal of their Judicial Decision was for implementation of the end of law. However, this chapter at the same time thinks that the ancient judges interpreted the law in the process of the judicial practice, on basis of legal instrumentalism, they made out the meaning of the legal norms with interest balancing and in favor of feudal consolidation of political power. As a result, that the ancient judges interpreted the law with which way ,lied in achieving the functions of legal instrument, and made light of the value of its connotation. Finally, the chapter also analyzes positively the legislative intent about uncertainly legal norms and its interpretation and application, and clarify the connotation of uncertainly legal norms, pointing out that the it is out of place to regard other provisions such as breach of statute and breach of The emperor's command as uncertainly legal norm. In addition, this chapter also analyzes positively the analogy regarded as " conviction and punishment beyond penal law ,pointing out that its problem did not lie in the analogy system itself, But the ancient judges in the process of analogy to invoke t, were too much susceptible by factors outside the case, and the lack of logic and due process ,this is blank wall in ancient China.Finally, this paper points out that we must treat our traditional resources Rationally and objectivity, we have to spill over into our history to dig their valuable ideas, to dissect the negative factors ,then we can borrow ideas from our cultural heritage for developing Chinese socialist rule of law.