Beyond Formalism And Skepticism In Interpretation Of Maritime Law

The target of this dissertation is to overcome the Formalism and the Skepticism in interpretation of maritime laws. Arguments in relation to interpretation of maritime laws in this dissertation have been made by four approaches, namely, jurisprudence, linguistic philosophy, value philosophy and legal argumentation. Hopefully, the dissertation could promote thinking about interpretation of maritime laws, and provide an appropriate philosophical foundation for it. This dissertation has four chapters as follows:In the first chapter, with an overview of the history and status quo of interpretation of maritime law, some research has been made to two opposite concepts: Formalism and Skepticism. It's contended that, the Formalism could be divided into four phases, i.e., Classical Formalism, Formalism as goal-rationality, Formalism combined with law and moral, and Realist Formalism, whereas the Skepticism could also be separated into three phases, i.e., Pragmatist Skepticism, Realist Skepticism, and Economic Analytical Skepticism.The second chapter, by research on the language used in interpretation of maritime law, and the factors of structure and context thereof, takes the Philosophy Hermeneutik in linguistic philosophy as its weapon, and makes a refutation to_Formalism in interpretation of maritime law. From the viewpoint of linguistic philosophy, the defects of Formalism in interpretation of maritime law, especially the Philosophic Ontology, which takes language and text as its centre, have been analyzed and refuted. It's also contended that, the mergence of Philosophy Hermeneutik and Analytical Philosophy in linguistic philosophy, resulting in the fact that people have more profound acknowledgement to language, the foundation of interpretation of maritime law, was a deadly blow to the Formalism.The third chapter, by research on the fact, value and norm of interpretation of maritime laws, in reference to values and ethics, makes a refutation to Skepticism in interpretation of maritime law. The analysis to the transference and mergence of fact and value in this chapter was aimed to refute the concept of Skepticism, which put judges in its centre. It's therefore argued that, when judges interpret maritime law, value judgment is unavoidable and objective, and, as a result, the theoretical foundation of the Skepticism collapses.On the basis of the above arguments, the fourth chapter has given up the conventional mode of interpretation of maritime law, which separates the subject and the object, as well as fact and value, oppositely. Instead, from the viewpoints of factors of subjective constitution and objective restriction of interpretation, this chapter has established a fundamental mode of interpretation of maritime law. Some arguments have also been made to this new mode. Besides, it's contended that, for interpretation of maritime law, some traditional concepts, such as correspondence of truth and Moral Skepticism, have to be set aside, instead, the truth of interpretation should be sought from the viewpoints of the Rawls' theory of reflective equilibrium, Habermars' die diskeisethik, and Alexy's theory of legal argumentation.