On Legal Interpretation Under The Perspective Of The Unity Of Ontology And Methodology Of Hermeneutics

As Chinese legal hermeneutics influenced by western hermeneutics, the standpoint and paradigm is used in legal interpretation study. With the transformation from methodology to ontology in western hermeneutics, the relationship between ontology and methodology in legal hermeneutics becomes a hot topic, interpretive turn happens in legal interpretation study. The paper takes the standpoint of combination between ontology and methodology in legal interpretation, and the perspective judicial center, and from the three aspects of epistemology, political philosophy and methodology. Therefore, the relationship between ontology and methodology in legal interpretation can be divided in three respects: the relationship between subjectivity and objectivity on epistemology, democracy and rule of law on political philosophy, scientific thought and hermeneutic thought on methodology.The first chapter mainly set up the analysis framework and logic stating point for the paper, by summarizing the influence of hermeneutics on legal interpretation study. The transformation happens in western hermeneutics from writer center to reader center and to text center, from methodology to ontology and to combination between methodology and ontology. So the paper takes the last standpoint as the analysis framework, evaluates the approaches, significances, possibilities and limitations of hermeneutics used in legal interpretation theories, and draws the conclusion that the interpretation is not only methodology but also ontology, the tension between them makes legal interpretation has much paradoxical features.The second chapter describes the methodology paradigm of legal interpretation. The paradigm is prone to set up scientific theoretical system, and based on the epistemology of subject-object dichotomy, the power-divided political philosophy and the jurisprudence of code, which connected with objectivity legality and determinacy of law respectfully. In the paradigm, subjective and objective interpretation are two different kinds of standpoint, actually, both of them are objective interpretation on the judicial standpoint, because both of them seek for legislator's will in legal interpretation. Therefore, the paradigm takes the objective standpoint and subsumption application as its application model on the operational aspect. In the epistemology, the paradigm asserts the objectivity of natural law thought and legal positivism. Natural law appeals to metaphysical entity and takes the form of objective interpretation; legal positivism takes law as some psychological and societal fact, so takes the form of subjective interpretation. Both of them are entity ontology on legal conceptions, hermeneutics criticizes them from the relation ontology. In the political philosophy, the paradigm based on power-divided principle, majoritarian democracy and supreme legal authority. As interpretive turn happens, the paradigm is dropped into the predicament in all three aspects.The third chapter analyzes the predicament in epistemology and provides solutions to it. The predicament is caused by the paradox between subjectivity and objectivity. The paradigm is the truth correspondence theory in philosophy, and the predicament is self-center difficulty. Legal interpretation theories influenced by interpretive turn tries to surpass the predicament. The dynamic statutory interpretation theory asserts that legal interpretation should not be based on foudationalism and be developed with the circumstance changing from the grand historical perspective. The global theory asserts that legal interpreter should integrate multiple horizons and seek for the only right answer for law under the perspective of concrete case. The paper asserts that the solution provided by philosophical hermeneutics is much limited. To that problem, we should distinguish validity from objectivity and understands the legal interpretation objectivity from the perspective of conservation.The forth chapter mainly discusses the political predicament of legal interpretation. In the framework of constitutional system, legal interpretation exists as judicial power. The tension between ontology and methodology in legal interpretation displays that all kinds of political values compete against each other. Interpretive turn makes failure to seek for legislator's will in legal interpretation, which challenges the traditional political value of democracy. The tension in constitutional system becomes that between democracy and rule of law. In American constitutional system, it is Madison predicament of constitutional interpretation. Judicial passivism competes against judicial activism as to the problem. The former asserts that judge should take modest attitude towards legal interpretation to seek for legislator's and textual will in order to safeguard traditional democracy value. The latter asserts that judge should take an active attitude towards the will of legislator and text by revaluing democracy. In western legal interpretation theories, there are many solutions to the political predicament including Ely's procedural democracy and judicial supervision, Dworkin's constitutional democracy and moral reading, Posner's elite democracy and pragmatic trial, Harbemas' deliberative democracy and procedural trial. By evaluating all kinds of theoretical approaches, the paper asserts that the predicament is hard to solve by specific legal interpretation method. On the stand of combination of ontology and methodology, we should not rely on methodology too much, but give sufficient trust to judges and inspect them by solutions such as judges' obligation of legal argumentation and cultural integration from public domain and procedural control form specific system. In Chinese context, we should not deny institutional logic by theoretical logic and should recognize the rationality of legislative interpretation and the activity and self-constrain of judicial interpretation.The fifth and sixth chapter mainly criticizes the traditional legal interpretation canons and subsumption application model and reconstructs them. As to the tension between scientific and hermeneutic thought in legal methodology, the paper takes an attitude that we should transform hermeneutic thought in methodology.The fifth chapter revalues legal interpretations including direct interpretation, systematical interpretation and historical interpretation by use of language and hermeneutic philosophy, also studies them from the aspect of judicial operation. Direct interpretation is reconstructed by Semantics and operated by genre model. Systematical interpretation is revalued by use of hermeneutical circle, should be operated in a open system to realize value coherence. Historical interpretation is reconstructed by use of dogmatic and effective history principles. Legislative history should be criticized in operation to realize the current values. Therefore, legal hermeneutics should surpass the foundationalism and revalue them in specific constitutional institution.The sixth chapter mainly reflects on the subsumption application model and reconstructs it by hermeneutics. The model is from Barbara model of logic and based on axiomatization of legal issues, and accuracy of legal language and absolute objectivity of case facts. To sum up, it is based on the dichotomy between fact and value. By reflecting on the Hume problem on legal philosophy, the paper asserts that fact and value interact each other in legal application, so the paper proposes the hermeneutic application model. In that model, judges' horizon is back and forth from fact to value, but the paper's point is against ontology about the model, but for methodology. Therefore, the traditional model exerts much effect in inner legal argumentation. At last, the paper answers the question about the self-sufficiency of legal methodology.