A Study Of Ontology And Method In Choice Of Law

The choice of law is the core topic of private international law. As to the research of paradigm shift of the choice of law, this dissertation with the justice as the center, adopts the research position of unifying the ontology and method in choice of law and systematically studies the tension between the ontology and method in the process of choice of law from the perspective of epistemology and methodology. The tension between the ontology and method can be specified into the epistemological contradiction between the subjectivity and objectivity in choice of law and methodological contradiction between the scientific and hermeneutics thinking model. After studying the ontology and method in choice of law, reflecting and reviewing on the traditional methods of choice of law and American modern methods of choice of law, this thesis tries to absorb the reasonable factors of the American methods of choice of law and construct the contemporary methodology of choice of law on the basic framework of traditional choice of law.This dissertation consists of seven parts. The main contents are as follows:The introduction section mainly introduces the background and the significance of this thesis, and describes the ideas and methods of researching. At present, the study on choice of law at home and abroad based on the view of justice is not comprehensive. It is very important for us to study choice of law from the perspectives of epistemology and methodology. It not only conducive to solve the theoretical differences on the issue of choice of law, but also contribute to correctly implement The Law of the Application of Law for Foreign-related Civil Relations of the People's Republic of China.Chapter1firstly discusses the significance of studying the ontology and method of choice of law when Chinese private international law is changing from grand narrative to microscopic analysis and elaborates the research position and approach of solving the current dilemma in Chinese private international law theory and practice. Then, it points out the significance and function of choice of law methodology in private international law theory and practice. Finally, it establishes the framework and logical starting point of this thesis through examining the relationship between the ontology and method in choice of law. Investigating from the historical development, the private international law has experienced the evolution from the formalism to substantially and the research of private international law has come through the author-oriented, reader-oriented and text-oriented paradigm shift. By investigating the knowledge pedigree of choice of law, this chapter evaluates the significance, possibility and limits of American modern choice methods of law and advocates that the rule and method should be unified in the research of private international law. As an ontology and method, the choice of law presents a series of dialectical features and the tension between the ontology and method maintains in the process of choice of law.Chapter2outlines and describes the traditional choice of law methodologies and their theoretical bases in terms of theoretical paradigm and establishes the critical target of this thesis. The traditional choice of law methodologies aim to construct a scientific theoretical system with the epistemological basis of scientism and legal basis of codification. The traditional methodologies of choice of law adopt the position of objectivism and take the logical model of volition as legal choice model so as to show for "explain+deductive" characteristics. Based on the epistemology, the traditional theoretical paradigm takes the knowledge schema and pursuit the objectivity of traditional natural law and legal positivism as the target of choice of law. Both the natural law thinking and legal positivism thinking is a substantive law concept which separating the spirit and existence, hermeneutics redefine the concept of choice of law in the relationship of spirit and existence through critical the relationship entity by the ontological entity, thus cause the innovation of choice of law theory. Under the background of change from formalism to substantially, the traditional choice of law theory gets in trouble in both epistemology and methodology.Chapter3introduces and elaborates that under the background of American Revolution of conflicts of law, the American realists have criticized wildly the traditional methodologies of choice of law. The epistemological paradox is the antinomy of subjectivity and objectivity of choice of law, this dilemma is epistemological paradox of correspondence theory of truth in philosophy and its essence is self-centered. The methodological dilemma is the antinomy of value and fact. The judicial syllogism as an applicable mode advocated by the methodological choice of law is a classical syllogism in legal thinking, with the axiom of choice of law system, the accuracy of legal language and objectivity of case fact as the a logic premise and its essence is the dualism of fact and value. By reviewing the Hume's problem of choice of law, the traditional methodologies basing on the dichotomy of fact and value encounter the collapse in philosophy of law.The chapter4describes and analyses that under the influence of conflicts of law, the American modern methodologies of choice of law have adopted the attitude to transcend the epistemological paradox of traditional methodologies of choice of law and put forward a series of choice of law methods such as principles of preference, governmental interests analysis theory, five-choice-influencing consideration, comparative impairment theory and doctrine of the most significant relationship. These theories claim that the choice of law should be kept pace with the legal environment of choice of law on the basis of grand historical visions, integrate the multiple horizons and pursue the only positive solutions on the basis of micro context of case judgment. This thesis argues that although the modern American methodologies of choice of law have formed a strong critical power on the traditional choice of law theory, they can not offer effective standards of validity to the choice of law. As to the epistemological paradox of traditional choice of law theory, we should take the theoretical path of non-realism so as to realize the difference of validity and objectivity. The effectiveness of choice of law is jointly safeguarded by coherence, consensus and objectivity, therefore, the objectivity of choice of law can only be the communicative objectivity realized in the specific systems and procedures.Chapter5philosophically reflects the traditional methodologies of choice of law and tries to reconstruct the judicial operations in the perspective of legal argumentation by utilizing the knowledge resources of hermeneutics and linguistic philosophy. Based on the hermeneutical position that the fact is intertwined with value, the contemporary methodology of choice of law claims that the judge's eyes are in the back and forth between the facts and rules of conflicts and the hermeneutic circle between the facts and conflict rules should be absorbed into the methodological construction. The choice of law is not only a legal discovery process, but also a legal due process. By distinguishing the discovery and justification in the course of choice of law, the task of external argument is to realize the shape of applicable law by analogy thinking, thereby the syllogism deductive reasoning are still playing extremely important role in internal argument.The last part is the conclusion, which briefly concludes that the criticism to the traditional choice of law methodology is in essence the criticism to scientism methodology. In the sense of discipline, the traditional choice of law methodology can not achieve self-sufficiency, but it can not be a reason for us to negate its values in maintaining the stability of private international law, restricting the judge's arbitrary interpretation and maintaining the boundary between the judicial power and legislative power. The choice of law is a method and ontology. It is the best choice for us to keep the tension between the rule and method in choice of law. Therefore, it is the issues which we must face and study in our theoretical research and practice to maintain the internal tension between the rule and method in a certain extent.