An Important Way To Answer "What Is Law"

"What is law "is a fundamental question of the legal philosophy. Its importance lies in:In theory,a successful answer to this question will allow us in other issues of legal philosophy inspired; In practice, when the law became an important means of social governance, only sufficiently clarifying the scope of law’s existence(more specifically, draw a clear distinction between existence and non-existence of law)can bring the advantages of the rule of law into play, and the law will be avoided to become a accomplice of tyranny. To this end, the West’s major law schools are all committed to clarify this issue. Throughout the history of legal philosophy, it can be divided into two camps:the formal jurisprudence and material jurisprudence. Formal jurisprudence sticks to essence-thinking over a long period of time so that the criterion of the scope of law’s existence is deemed to be a legal concept which is completely divorced from life facts (including the fact of positive law) and purely formal criterion. Material jurisprudence sticks to reality-thinking. The criterion of the scope of law’s existence is deemed to be life facts completely divorced from any legal concept and a pure material criterion. And the difference between the first two is that Gadamer’s Hermeneutical jurisprudence based upon ontological phenomenology follows the situation-thinking and tries to use the language medium to communicate the form and material, thinking and being,ideas and facts together, so that provides a new way to answer "what is law". With his vision to see, in his Hermeneutical theoretical framework, the law is described as a realizing process including legislative activities, judicial activities and Hermeneutical reflection on a judgment. This process constitutes law’s temporal existence, beyond both ends of the process is non-existence of the law. The thing itself with relative characteristics is the criterion of range of law’s existence and gradually presented to us in this process. The thing as criterion, on the one hand, distinguishes from legal norms and other norms in the spatial dimension, and on the other hand, from the law’s existence and non-existence in the temporal dimension, thus delineating the scope of law’s existence three-dimensionally. However, the thing itself is presented as multi-faces in language, and the judge can only choose one, so that he often has to resort to the power and render a decision accordingly. To this end, the judge must assume the obligation to argue things as criterion. Legal argumentation includes logical argumentation, dialectical argumentation and rhetorical argumentation, each of which has both intrinsic defects. Therefore, it is impossible for the thing as criterion to be presented fully when a case is concluded. It will be successful through Hermeneutical reflection and opening temporal distance from the judgment, so that the range of law’s existence will be clarified.This paper is divided into three chapters:in chapter1section1, the author leads to the fundamental problem-What is the law, or how much is the range of law’s existence, what is the criterion distinguishing the law’s existence from non-existence. Section2puts forward essence-thinking corresponding formal jurisprudence and reality-thinking corresponding material jurisprudence. The two thousand years of Western history of the legal philosophy is essentially the history of argument between the formal jurisprudence and material jurisprudence. The ancient form of natural law jurisprudence, the medieval form of natural law jurisprudence and the modern rational form of natural law jurisprudence are the representatives of the formal jurisprudence, whose common feature is that they all advocate the pure formal conception of natural law as the criterion clearing the range of the law’s existence. Some modern positive jurisprudences are the representatives of the material jurisprudence, whose common feature is that they all advocate the pure material life facts as the criterion clearing the range of the law’s existence. The problem of the two traditions is that they both separate form from material, thinking from being, ideas from facts, and lead to some insurmountable practical consequences. The earlier attempts to fuse form and material to correct the purely formal criterion of law which the formal jurisprudence suggests are Aristotle’s natural jurisprudence, the Roman jurists’natural jurisprudence and Aquinas’natural jurisprudence. Especially Aristotle’s natural jurisprudence applying situation-thinking and phronesis provides an important inspiration for Gadamer’s Hermeneutical jurisprudence. However, due to the above-mentioned three jurisprudences are confined to classical metaphysical teleology(Aristotle),rational Christian God(Aquinas), or do not reflect philosophical basis which fuses form and material (ancient Roman jurists), so that do not really overcome the fracture between form and material. Section3puts forward situation-thinking and elaborates corresponding several legal philosophy: Kaufman’s "analogy and’the nature of things’"doctrine, Hart’s new analytical jurisprudence and Radbruch’s "things of law " doctrine. These three theories attempt to apply the thinking-situation, but in the subtle the ways of their application are unlike the way of Gadamer’s Hermeneutical jurisprudence applying it. The author introduces and compares these three legal theories in order to provides an important reference point for understanding Gadamer’s Henneneutical jurisprudence. It is particularly worth mentioning is that Radbruch was the first person who advocated "things of law " and the concept as a medium to go beyond formal jurisprudence and material jurisprudence, although not successful, he had provided an important inspiration. Gadamer’s Hermeneutical jurisprudence expands and deepens in this direction.Chapter2formally analyze and argument Gadamer’s Henneneutical jurisprudence. Firstly, according to the clue of clarifying Hermeneutical situation and the view of Henneneutical truth, this chapter introduces the basic ideas of Hermeneutics, such as artistic truth, the principle of history of effect and the ontology of language; Secondly, the author will describe phenomenologically the first two stages of realizing process of law-the process includes three stages:the legislative activities, judicial activities and Henneneutical reflection. Legislation begins from interpretating life facts and ends up with creation of statute laws. The whole process is one that the thing is presented in the play of dialectical question and answer. More importantly, this section further analysis and applies Gadamer’s some basic ideas of ontology of language, such as the fusion of linguistic horizons, language as experience of the world, linguistic speculative structure. It will provide a fundamental analytic framework for the later content, for example, reviewing and reconstructing certain legal methods. Judicial activity is the2nd stage of the realizing process of law. The difference from legislative activity is that judicial activity contains a trilateral structure. Making a just judgment depends on correspondence between one thing which is presented in the judge’s dialogue with the text of the case fact and another thing which is presented in the dialogue with the text of the statute law; According to the previous text’s analysis and argument, the last section summarizes the characteristics of the thing as the criterion of the range of law’s existence-both dynamic and static, and thus is relative. Here, this paper specifically responds to the current accusation against Gadamer’s legal Henneneutics being immersed in relativism. The author asserts that the legal Hermeneutics based on Gadamer’s Hermeneutics is only relative, but not being immersed in relativism. For the thing as a criterion is a result of the judge’s understanding and one of multiple interpretations, it requires phronesis and the power to make a decision for the judge choosing one interpretation. Therefore, the realizing process of law is not yet complete when the judge has interpreted the thing, because he has to to argument his interpretation. When the interpretation is justified, the realizing process of law is truly complete. So this paper transits to chapter3.The theme of chapter3is legal argument. Legal argument includes the three methods of logical proof, dialectical argument and rhetorical argument. Logical proof can not prove the legitimacy of major premises of the legal judgments. Dialectical argument still gives the variety of interpretations on the things. Despite rhetorical argument is required to present the truth and resort to emotional impress, the judge often encounters rhetorical incompetent, and therefore needs the competence in political activities to force the parties and other members of society to be integrated, but the judge’s authority is required to be justified. The legitimacy of authority depends on whether he is superior to the obedient in insight and presents the truth of things more reasonably. Thus, it has reverted to the problem of argument and immersed in the so-called "Munchhausen tautological dilemma". This result suggests that it is impossible to complete the argument when the judge has made a decision. Whether an interpretation is reasonable depends upon Hermeneutical reflection through temporal distance, so we enter the last section. This section attempts to clarify such a view: only when the Hermeneutical reflection through temporal distance is completed, the judge’s interpretation of a thing is proved to be reasonable. Laws project the life orders of a community. According to the ontology of existence, the survival of Dasein has freedom and risk, which leads to the judgment’s freedom and adventure.