The Validity Of Legal Interpretation

The validity of law and legal interpretation are the basic theoretical issues in the theory of law. The research on the basic of Validity of interpretation in the western Hermeneutic has shifted roughly from the author response theory to the reader response theory then to the text response theory. Accordingly, this shift occurred in the theoretical research on the validity of legal interpretation, which not only changed and enriched people's knowledge and understanding of the conceptualism of the law esp. the conceptualism of Validity, but also deeply extended the research on the legal methodology. The study of the Validity of legal interpretation involves a comprehensive thinking about an ideal judicial adjudication, which includes such issues as the way to obtain the correct legal knowledge and decisions through legal interpretation, the possibility of the judicial adjudication legally bound to law, the construction of the legal methodology of realization of the correctness of the judicial adjudication, as well as the ideal evaluating standards of the validity of legal interpretation. Therefore, the validity of legal interpretation is an issues need to be explored not only in the philosophy of law, but also in the legal methodology.In the practice of legal interpretation, the conflict between effectiveness of legal interpretation is regarded as a perpetual problem. In the hermeneutic of law, the evaluating criteria of the validity of legal interpretation among the people are also different. Because the above, the intention of this article is not to explore a set of ideal evaluating criteria of the validity of legal interpretation but the theoretical basis of the validity of legal interpretation from the perspective of legal methodology and give the necessary re-thoughts. This study is not only theoretical but also practical, and the former is the dimension of the philosophy of law, while the latter is the dimension of legal methodology.Chapterâ… outlines the origin of the validity of legal interpretation which is the logical starting point of this paper and the overall framework. The validity of law is a fundamental theoretical problem in the western theoretical legal research. The positions and the connotations of the validity of legal interpretation are so complicated that the comprehensions of the validity of legal interpretation are different greatly. However, the formal and substantive validity of law are the two basic elements of validity of law, so the formal and substantive validity also constitute the overall framework of our exploration about the validity of legal interpretation. The three schools of law theory in the west world have made key research on the validity of law. Though the emphasis of their concepts of validity are different and in their theoretical context there is also a relatively rational side, they have such limitations as a nature of one-dimension, closed, static and lacking of rational justification and particularly ignoring that the concept of law is interpretation and argumentation. The application of law is a process of continuous interpretation and argumentation, while the formal validity and the substantive validity are the two basic theoretical dimensions of construction of validity of legal interpretation. The study of legal hermeneutic is composed of such three basic issues as the object, the validity and the legitimacy of legal interpretation. Therefore, the study of the validity of legal interpretation must start from the perspective of philosophy of law. Meanwhile, the legal interpretation is a process of continuing to achieve rationalism, and the legal method is a methodological way of rational constructing a valid legal interpretation. So we have to explore the validity of legal interpretation from the perspective of legal methodology.Chapter II is about the transformation of the focus in the study of the validity of legal interpretation. In the long history of hermeneutics, the language interpretation and the historical hermeneutics constitute the two camps of the study of the theoretical hermeneutics, while the legal hermeneutics and the religious hermeneutics constitute the two camps of the study of applied or practical hermeneutics. Hermeneutic has transferred gradually from the simple techniques and methods of explanation to the epistemology and methodology, from the epistemology and methodology to the ontology, from the ontology to the theory of practice. At the same time, considering the arguments of truth and application problems in the interpretation, hermeneutics has changed from arbitrary to inquiry nature, from the general hermeneutics to the spiritual hermeneutics and then to the practical hermeneutic. The development of western hermeneutics has equally affected the overall development of legal hermeneutics. The study of the theme of the validity of legal interpretation is constantly changing. It should be pointed out that whether the author response theory or the reader response theory of legal hermeneutics, they are not coping well with the truth and application problems in the legal interpretation. So we should maintain the position of the text response theory during the study of the validity of the legal interpretation. There are four reasons. First, the legal text is the logical starting point for legal interpretation; Second, the legitimate pursuit of legal interpretation requires the legal interpretation focusing on the legal texts, and the dogmatic of law is the basic position of study of the validity of legal interpretation; Third, the normative of law determines the normative of practice of legal interpretation. The legal discovery and the legal justification are the two basic legal thinking to rationally construct the validity of legal interpretation; Fourth, in order to avoid the dilemma of the debate between arbitrary and inquiry, we need re-think from the position of the text response theory. As a result, the truth and application problems in the legal interpretation can be taken into account at the same time. From the perspective of constructing the judicial adjudication, the legal interpretation has three basic features of text-directed, rational authority and the acceptability of the results of interpretation.Chapter III discusses the theoretical basis of the relevant legal methodology on constructing the formal validity of legal interpretation from the context of legal discovery. In general, the object of legal interpretation is the valid legal norms, while the legal concepts are the basic unit of construction of meaning for the legal norms. Therefore, the conceptual analysis has become one of the important methods for the formal validity of legal interpretation. However, to recognize the status of the conceptual analysis method in legal interpretation, the legal norms should be recognized as substantiality firstly. In the theoretical study of the substantiality of the legal norms, there exist the debasements between the realism and the anti-realism. The Conceptualist Jurisprudence is a western law school which described systematically the legal norms having the character of substantiality from the anti-realist position. The Conceptualist Jurisprudence emphasizes the importance of the conceptual analysis in legal interpretation and holds that with analyzing the legal concepts, the context of the meaning of legal norms can be grasped and interpreted. The Conceptualist Jurisprudence holds an idea of supremacy of concepts in the legal interpretation and objective validity of the legal interpretation. In contrast with the Conceptualist Jurisprudence, the Interests Jurisprudence, the Free Jurisprudence and the Legal Realism oppose the position of the Conceptualist Jurisprudence, while advocate the position of realism; oppose the Conceptualist Jurisprudence focusing on the legal concepts to expand the objective interpretation of the meaning of legal norms, while advocate analyzing the practical meaning of legal norms with the help of such scientific methods as interest, psychology, experience, etc. They hold an idea of nihilism of concepts in the legal interpretation. Conceptual analysis starts the legal interpretation based on the logical analysis of the legal concepts which carry meaning of legal norms. But the logic of law is a normative logic, and Kelsen's normative logical analysis based on transcendentalism is a model of studying the systematical interpretation of legal norms'meaning. Kelsen constructed the logical structure within the system of legal norms, which has important guiding significance for our research on the validity of systematical interpretation of legal norms. But Kelsen's transcendentalism excluded the study of true/false value of the legal propositions. Therefore, his normative logic analysis in the study of the validity of legal interpretation is also defective, because it can not realize the transition from transcendence to experience. Semantic interpretation is an important method of legal interpretation. Hart's theory of the validity of law explored the validity of semantic interpretation through the model of 'syntactic-semantic separation theory'of legal interpretation. With the combination of descriptive methods and explanatory methods, Hart successfully constructed the structure of argument connecting the'propositional truth' and 'normative validity' of semantic interpretation. But he still ignored the'propositional truth'and could not guarantee the correctness of interpretation of the meaning of the propositions, because it also has limitations to define the truth of the declarative propositions of legal rules with empiricism. Although the'normative logic'research and'syntactic-semantic separation theory'have their rational side in certain area, from the perspective of the reader response theory of legal hermeneutics, whether Kelsen's 'pure theory of law'or Hart's theory of the validity of legal rules, they both has certain limitations in the demonstration of the formal validity of legal interpretation. With the re-thought of the traditional legal syllogism's role in the application of law, a legal discovery mode centering the analogical interpretation gradually won people's recognition. Kaufman's categorized thinking advocated the model of legal discovery of breaking the binary of facts and norms from the perspective of philosophical hermeneutics, and set forth this mode of thinking in the central position of the legal discovery. Opposing to Kaufman's categorized thinking based on transcendentalism, Sunstein's study of analogical thinking based on the tradition of legal reasoning of common law can be regarded as an effort for the analogical interpretation. With the idea of'incompletely theorized agreements', Sunstein promoted the status of analogical thinking in the legal discovery to advance the democratic justice. So the importance of analogical thinking in modern judicial practice got highlighted. Analogical thinking is a legal mode of thinking and application of law, which should be advocated in the society towards democracy and the rule of law. To defend the rule of law requires us take seriously the status of analogical thinking in the legal discovery. From the perspective of legal methodology, the conceptual analysis, the systematical interpretation of legal norms, the semantic interpretation, the categorized thinking and the analogical thinking have the distinct position of legal formalism for the rational framework of the validity of legal interpretation. So they are important legal methods to construct the formal validity of legal interpretation.Chapter IV discusses the theoretical basis of the legal methodology on constructing the substantive validity of legal interpretation from the context of legal justification. From the standpoint of the substantive validity of law, the validity of the legal interpretation can be achieved through the justification of the correctness of the legal norms' contents or value. Under the historical background of the contemporary transformation of philosophy and social sciences, people began to explore how to construct correct interpretation of law from the new theoretical perspectives. Therefore the new studies of the validity of legal interpretation have a distinct orientation of legal substance and the substantive validity of the legal interpretation. At the same time, peoples criticized the formalism of the traditional study of the validity of legal interpretation. In the traditional legal methodology, the discussion about the factual and the normative of law just focused on a particular side. Based on pragmatics, Habermas explored consensus theory of truth, and strongly criticized the correspondence theory of truth. He constructed the procedural rules of rational negotiation in the justification of the legal propositions based on the theory of rational negotiation, which had broken the opposition between the factual and the normative of law. However, Habermas's view that the justification of the legal propositions can be achieved through discussing procedures in the ideal situation is lack of legal practicality. Alexy presented the theory of procedural legal argumentation based on Habermas's theory of rational negotiation. The justification of the correctness of the legal propositions is based on valid law, and therefore, the internal justification and external justification constitute a dual rational framework for the legal justification. The theory of procedural legal argumentation has limitations that the coherence of legal justification is not been resolved. Coherence is an important criterion to measure the substantive validity of the legal interpretation. Dworkin's coherence theory of legal truth was built up based on the criticism of the correspondence theory of truth, the theory of skepticism and the theory of relativity, etc. And it advocated the constructivist model of legal interpretation and proposed a coherence theory of law theory in the position of internal realism of truth. Dworkin's coherence theory is also criticized by a lot of peoples. The biggest problem is that the coherence is only a criterion in its own justification of the validity of the legal interpretation and a kind of monologue-style rational self-justification to a large sense. The rational justification of the correctness of legal explanatory propositions is based on the valid legal norms. But the conclusions of the legal interpretation also need to have acceptability. Aarnio explored the justification of the acceptability of the legal interpretation based on the science of dogmatic. In the legal interpretation, the explanatory validity of the proposition requires a process of the rational legal justification. The rationality of logic and the rationality of dialogue are the two basic elements of the rationality of legal interpretation. Besides, the correctness of legal interpretation also needs the conclusions to have acceptability. In the justification of the legal interpretation, the final consensus of audiences on the conclusions of legal interpretation is the foundation of acceptability. Language games, forms of life and the legal community are the realistic conditions for constructing an acceptable legal interpretation. Generally speaking, the construction of the substantive validity of the legal interpretation is achieved by the construction of reasons of the legal justification. The final acceptance of judicial decision is not simply for its authority, but rather for its reason.There is no doubt that the validity of legal norms is not entirely dependent on its enforcement of state organs, and the empirical validity is only one of the elements. Similarly, any legal interpretation has validity not simply for the authority of the subjects and the empirical validity of laws. The validity of legal interpretation should reflect many attributes as correctness, proper procedure, coherence and acceptability, etc. In contemporary society of democracy and the rule of law, the authority of legal interpretation is not just a national authority, but also a rational public authority. The authority with no reason is lack of basis of validity. The era that the judicial process was stayed simply by reading the decision has ended. The correct interpretation and rational justification of the law is increasingly becoming the tasks of the judges. Accordingly, the legitimate basis of the exercise of the judges' power is also closely related to the premise of the judicial decision, the rational process of justification and the acceptability of the conclusions. The judges need not only interpret the validity of legal interpretation, but also justify it rationally. And the final conclusions of the legal interpretation should be accepted rationally and widely by the community.