Study Of Law’s Determinacy

Since the end of19th century and the beginning of20th, the statement of ‘Law iseterminate’, as the primary proposition and basic conviction needs not to be provednd expounded, has received query, criticism and even subversive attack fromositivism, perceptualism, relativism and postmodernism. Signaled by debates of ‘anique answer’ between Hart and Dworkin, such a close quarter combat of conflictingheories makes the question of law’s determinacy into a disputable proposition ofhilosophical jurisprudence. However, related theories only inspect the question in ane-way pattern and from certain single dimension, incapable of delivering aanoramic argument, for which reason the vague impression is generated that law iscan be) both determinate and indeterminate.The proposition that law iseterminate/indeterminate can only be true when provided with strict restriction ofontext. It must not be applied mechanically.The debate on the determinacy/indeterminacy of law is, in its essence, thergument around the traditional judicature formula of “R(Rule）×F(Fact）D(Decision）”, which is manifested in the determinacy/indeterminacy of rules, facts,nd judicial reasoning, and has various ways of exhibition. The argument has its sourcen philosophical disagreements of the determinacy/indeterminacy of objective world,he individual cognition/group convention of knowledge, and the relationship betweenanguage and its objects. Also, it states the nonidentity between objective facts andegal facts, the inequivelance between justice of individual case and social order, theon-overlap between common views and objective truth. It is therefore possible torove and define the determinacy/indeterminacy of law with the aids of “segmentlicing+overlapping view”,“objective homogenesis+convention view”,description＋specification”,“logic in form+logic in probability”.We should stick to the fundamental elements when defining theeterminacy/indeterminacy of law. The existing theories of law defining, such as “anique answer”,“objective criteria”,“explicit demand”,“definite semanteme” and “self-consistent logic”, to different extents separate the unity of subjectiveness andobjectiveness, integrity and parts, essence and presentation, and confront them againsteach other, as a result, these theories are superficial, unilateral and incomplete. In orderto precisely and clearly define the determinacy of law, we should study it in both formsand the entity. Its meaning in forms is that there is a definite contact between thesubjective cognition and its objective targets, and, for the best, the former promulgatethe latter precisely; meanwhile it is a result of the social consensus on truth, and aresult of the state stipulation of acts on national affairs. Its meaning in entity is thatwhether there is uniformity between the factum juridicum and the case of fact, whetherthere is a unique criterion of value in the form of law that can eventually evaluate thefactum juridicum, whether the combination of the two can induce a unique answer andcan whether the answer can be transformed into actions.There are three grounds for the determinacy of law. Firstly, law is the result of thecognition and the objective things governed by law are in-itself and objective, fixed inessence and quantity, stable and continuous. The manifestation of the law-in-itself islimited by the observer; various manifestations are identifiable and can be reduced intothe law-in-itself. The concepts of law have the entity, the regularity of forming andconventional views. Secondly, law is the means to construct social order. It shouldprovide well defined goals, ways of act, and a public authority, be able to rectify thehuman relations in society so that they can keep up with the society and the statedemands, be able to judge conflicts in an absolute authority, processing batch, and alsofinish them in entity. Thirdly, law is a pattern of expression of language. Its conceptand proposition have a unique entity, a this-or-that answer in fact judgment or valuejudgment; its form in texts is stationed, stabilized and regularly formed. Its context isdetermined by the language environment, the law subject, history and tradition.Baesd on and for the society, law should be laid down and announced by thelegislator to regulate the ways of act，be complied with by the judicatory to revaluateand rectify the society relations distorted by violations.The nature of legislation is to choose certain subject and act as its target, and toendow them legal values and sanction so that rational people have a correct choice indoing something or not. The realization of certain legal regulation on an act should hasa quality basis of harmfulness, a quantity basis of necessity and effectiveness for lawmaking, a direction basis of the goal for which the legal system set up. A legal regulation should have a fundamental structure of “hypothesis+disposal+sanctions” or“pattern of behavior+legal consequence”. To suit the communal demands, a legislatorshould be appointed in a universal and majority-decision election to display universalor overlapping views. To meet the social demand of justice, a legal regulation shouldcomply with Rawls’ two-justice-criteria so that to maximize the benefit of the wholesociety on the basis of social equity. Of course, the system of legislation and legalregulation should be coordinated and integrified so that it can avoid concurrences orconflicts in itself.The aim of judicature is to get a unique answer by combining the legal regulationsand the concrete cases. To get “a unique answer” of a case, it is necessary to make aconsistent judgment of the case fact and fix it with proofs，to determine a uniqueregulation and it’s meaning, to make the case factors be subject to the law factors inlogic. To expand the mechanism of acquiring the unique answer of a concrete case toall cases or lawsuits, it is the key that the judicators should judge the cases in identicalway of collecting and judging proofs, be neutral when considering case facts, disputinginterests and others’ estimate or objection, so that they can identify, shear and judge allcases in a standardized way. Of course, judicature should finish lawsuit disputes in factand in reality, therefore it is necessary to establish mechanism of executing judicaturedecisions and protecting its authority whereby we can preserve and defend thejudicature authority when judging and evaluating all cases, rectify the society relationsdistorted by violations and rearrange them.