The Quest For Determinacy

Since my master's degree paper, I have been thinking the subject matter about the way out of China legal study. This paper is my successive concern about the subject matter and deeper exploration of the study. In my previous studies, as one focus of the study, the native resources theory leads me to probing Posner's legal theory that the latter is one of the theoretical resources of the former's. This paper is a research and demonstration about Posner's legal theory. And then I reflect on and criticize not only the legal formalism that is currently popular in China, but also China legal study that makes the legal formalism.Richard A. Posner is known as the most influential spokesman of the legal pragmatism in United States. He inherits the tradition of the legal pragmatism that is created by Justice Holmes and still fiercely criticize the legal formalism, which is mainly focused on the academic debate between Posner and Dworkin. Posner's legal theory and the academic debate between Posner and Dworkin are centered on the problem of the legal determinacy. The issue of "determinacy" is not only an important legal problem, but also an important philosophical problem. In this paper I explore the legal meaning and the philosophical implication about the determinacy problem. I also explore two important theoretical resources of Posner's legal theory. These two important theoretical resources are the philosophy of pragmatism represented by Dewey's and the philosophy of science represented by Kuhn and Popper's. I intend to make use of these two important resources to construct and interpret Posner's legal theory. At the end of the paper, I use "Ting Xu Case" as a typical case to show the positive and normative meaning of the activity theory of law by Posner, and refer to Michael E. Latham and Philip chung-chi Huang's research to make an attempt to carry out an ideological criticism on China legal study. As a study result, I hope to construct a China law science with a pragmatistic tendency. This law science based on practice and reflection will lead China legal study to get rid of the current practical and theoretical difficulties.The whole paper is divided into nine parts consisting of the introduction, the end and other seven chapters as the main parts of the paper. In the introduction, I firstly explain the reasons why I study Posner's legal theory. Secondly I point out that the core issue of the legal theory is the problem of the legal determinacy and give it a preliminary definition. Thirdly I point out that this theoretical issue is equally important to China now though we are different from Posner in the background of the problem. In this part, I also lay out the structure of the argument and generalize other parts except the introduction.In Chapter I, I further define the problem of the legal determinacy through making clear the academic debate between Posner and Dworkin. I hope Posner's legal theory can be clarified through the core issue. To refute Dworkin's well-known "right-answer thesis", Posner puts forward the strong thesis and the weak thesis. Then they dispute each other on the issue for a long time. In this chapter, I don't attempt to perceive that their points of view are right or wrong, rather, what I'm concerned about is the theoretical question in the dispute and the epistemological source of their disagreement.Chapter II continues exploring the philosophical implications of the question of determinacy——the western philosophical background, especially pragmatism in the United States, which is knowledge precondition of studying the theoretical question in China. In my opinion, the legacy of the Enlightenment in philosophy constructs the grand background of the contemporary western philosophical discourse. So I discuss the legacy of the Enlightenment and how pragmatists represented by Dewey and post-modernist philosophers raise the question of determinacy in response to the legacy, and object explicitly to putting a label such as "post-modern" or "modern" on Posner's legal theory.In Chapter III, I describe concisely Posner's legal theory around the question of legal determinacy, and demonstrate that it is a theory of understanding law as an activity. The theory develops through defending and reconstructing Holmes's "prediction theory of law", and indicates that the activity theory of law has a tendency of pragmatism and the characteristics of modern philosophy of science through generalizing its key points.The Chapter IV studies deeply the pragmatic context of Posner's legal theory. In this part, I select three key concepts: logic, science and practical reason, compare Posner's relevant discussion on those concepts with classic pragmatists'such as Dewey and Holmes, and show the relation of Posner's legal theory to pragmatism. The Chapter V considers additionally the relation between Posner's legal theory and neo-pragmatism represented by Rorty. We will see more clearly in what sense Ponser shares the basic standpoints with neo-pragmatists and in what sense he is inclined to support classic pragmatists by the comparative analysis of new and old pragmatism.The Chapter VI focuses on another important source of Posner's legal theory: the philosophy of science represented by Popper. The reason why the philosophy of science, represented by Popper, has become another important theoretical source of Posner's legal theory lies essentially in the epistemology shared by the philosophy of science and pragmatism. In this chapter, we will see Popper's response to Hume problem and Kant problem, Kuhn's improvement on Popper's theory, and Popper's thought on determinism. All of the above provide an effective conceptual framework for our understanding of Posner's legal theory from philosophical perspective.Chapter VII, based on the analysis in the chapters above, provides a summary evaluation of Posner's legal theory from my so-called"internal perspective"(an internal evaluation from pragmatism), which addresses the issue that to what extent Posner is faithful to pragmatism, and examines that pragmatism contributes to activity theory of law. I draw the conclusion: so far as the fundamental position is concerned, Posner can be regarded as a pragmatist; whereas it is unreasonable to desire that Posner hold the same point of view as pragmatists in every detail. Moreover, pragmatism does contribute to Posner's insights into law.In the last chapter, I employ Posner's legal theory of pragmatism to analyze"XuTing's case", which reveals the practical and theoretical dilemma of legal formalism, argue about the validity of legal pragmatism, and further claim to construct a china legal study with a tendency of pragmatism and basis on practice and reflection.Throughout the dissertation, I affirm the research method with the theoretical issues at the core, attempt to understand and grasp a particular theoretical form through relevant academic resources, insisting on combining abstractly theoretical interest with my peculiar problem, and avoid doing research purely for its own sake without aim or clear purpose. This dissertation is not only stage achievement of research on legal pragmatism, but also an attempt to become a practice of pragmatist approach to legal theory.