| There is an unavoidable tension between static legal norms and the dynamic changes of life.Even if legislators keep adding and deleting laws,they cannot completely dissolve the tension between the two.On the one hand,legislators are not omniscient and cannot anticipate all possible legal problems and solve them one by one;on the other hand,apart from extremely precise numbers,words themselves are polysemous as a tool for legislators to express legal norms.In order to compensate for the imperfection of the law,many scholars believe that when dealing with specific issues,one should not stick to the provisions of the law: either by combining the necessity of punishment,the nation’s sense of law,or public recognition,etc.,and by constantly dissolving the boundaries of the legal text,one should try to expand the reach of legal norms;or by directly turning the vision to the realm of life and making use of extra-legal factors such as customs and ethics that exist in society to make decisions.However,the aforementioned scheme may be able to alleviate the tension between law and reality to a certain extent,but in China,where the concept of rule of law is not yet sound,it is easy to sow the scourge of arbitrary adjudication.The unrestricted introduction of substantive factors into the process of legal adjudication and the denial of the existence of legal literary boundaries will not only not help the trial of specific cases,but also make the goal and effectiveness of the construction of a rule of law state erode.Therefore,legal people should still adhere to the formal rule of law position,adhere to the legal doctrinal approach,legal norms as the starting point and end of judicial practice,the only way to the rule of law state.The rule of law is against interpretation,and the interpretation opposed by the rule of law is arbitrary interpretation.In the judicial field,the authority of the rule of law is based on the premise of the primacy of textual interpretation.The priority of the interpretation of the text means that the text outlines the possible borders for legal interpretation activities and sets a solid defense line for the practice of formal rule of law.The realization of the primacy of textual interpretation depends on the clarification of the possible scope of textual interpretation-"possible textual meaning"(der m?gliche Wortsinn).The traditional viewpoint grasps the meaning of "possible meaning" from different perspectives,such as the possibility of national prediction,obvious abruptness,and the sense of public discourse,etc.When dealing with a specific case,each judge has a different former understanding,so how can we judge which interpretation is in line with the possibility of national prediction or has an obvious abruptness to the public? A standard that cannot be implemented in judicial practice is a mere airy-fairy,a self-indulgence of the theoretical community.In contrast to the traditional view,Yato Kaufman proposes that all activities of legal application are analogous.His type theory holds that there is no difference between interpretation and analogy,let alone a boundary between the two.However,can the real society really bear the consequences of the deconstruction of the boundary between interpretation and analogy? Kaufmann’s theory that all legal application is analogical only reveals that legal application is a comparative and equivocal activity,and the "possible meaning" of the primacy of practical interpretation aims to delineate the boundaries of this comparative and equivocal activity.In other words,even if it is admitted that all legal application is analogical,a distinction should be made between analogy that is permitted by law(analogy within the scope of the possible context)and analogy that is not permitted by law(analogy outside the scope of the possible context).Looking at the essence through the phenomenon,the value judgment is mixed behind each view.However,it should be noted that various interpretative methods and activities are ultimately realized as the definition of the meaning of the text,and different definitions involve different choices of interests or value decisions.However,these choices are undoubtedly bound by the scope of "possible meaning",and can only run within this scope,and are not allowed to go beyond the "possible meaning" for arbitrary interpretation.This paper argues that "possible literatures" should be based on legal doctrine as the fundamental position,and the judgment of "possible literatures" should start from conceptual analysis,with conceptual analysis as the main focus and system supplementation as the supplement,while being alert to the erosion of conceptual analysis by conceptual deconstruction,so as to give full play to the importance of legal literatures in maintaining legal authority and stability.At the same time,we should guard against the erosion of conceptual analysis by conceptual deconstruction,and give full play to the important value of legal meaning in maintaining legal authority and stability.The introductory part of this paper elaborates on the tension between actual legal norms and social reality in reality,and proposes the important role of possible literatures in delineating the boundaries of legal interpretation activities from the perspective of legal hermeneutics.Due to the presence of rough holistic and dialectical thinking in the traditional Chinese concept,extra-legal factors often invade judicial practice,which not only affects the authority of law but also curbs the process of building a rule of law state.Although the priority of textual interpretation has been generally recognized by scholars,the voice of deconstruction of textual boundaries is still incessant.Thus,this paper intends to focus on and address the following questions: first,whether the concept of possible literary meaning has existential value;second,whether the existing criteria of possible literary meaning are operable;and third,how to improve the elements of possible literary meaning on the basis of existing theories and apply them correctly.The main part of this paper is divided into six chapters: Chapter 1 is the introduction of the concept of "possible literary meaning",Chapter 2 is the proof of "possible literary meaning",Chapter 3 is the determination of the criteria of "possible literary meaning",and Chapter 4 is the search for the concept of "possible literary meaning".Chapter 4 is the search for the position of "possible literary meaning",Chapter 5 is the positive elements of "possible literary meaning",and Chapter 6 is the negative elements of "possible literary meaning".This paper intends to consider and grasp the overall meaning of "possible meaning" through the study of these six parts,and to highlight the importance of "possible meaning" in distinguishing between legal interpretation and legal continuation.The specific content of each chapter is as follows.The first part is the introduction of the concept of "possible meaning".Contextual interpretation is the starting point of legal interpretation,and "possible meaning" is the end point of legal interpretation.The context itself defines the possible scope of legal interpretation.In other words,only when the corresponding interpretation conclusion is within the possible context,the relevant interpretation conclusion is justified.The rule of law opposes arbitrary interpretation,and "possible meaning" plays the function of guaranteeing the priority of interpretation,and is the best theoretical help to practice the rule of law against the proposition of interpretation.Faced with the view of deconstructing the boundary between legal interpretation and analogical application,it is necessary to use the doctrine of legal doctrine to counteract and determine the two connotations of the priority of textual interpretation: the priority as the logical starting point of interpretation activities;the priority as the end point of legal interpretation activities.The second part is the proof of "possible meaning".The status of "possible meaning" in legal interpretation should still be maintained.This is because there is a clear difference in the constitutional legitimacy and burden of argument between the legal interpretation activities within the scope of "possible meaning" and the legal renewal activities outside the scope of "possible meaning".Especially in China,in order to overcome the shortcomings of traditional holistic thinking or dialectical unity thinking,it is urgent to strengthen the priority rule of interpretation through "possible textual meaning",so as to achieve the goal of building a state under the rule of law.The third part is to determine the criteria of the concept of "possible meaning".This chapter summarizes and concludes the existing doctrines on the criterion of"possible meaning".There are different doctrinal positions on the connotation of the concept of "possible literary meaning".Some views point out that "possible literary sense" refers to "national prediction possibility" or "national apparent abruptness"from the perspective of psychology,but this understanding is not a definition of"possible literary sense.However,this way of understanding is not a definition of"possible literacy",but a description of possible literacy by other criteria,which may cause distortion of the description criteria.From the viewpoint of value evaluation,some argue that the choice should be made according to the value position when there is a model of "possible meaning",but how to ensure the appropriate involvement of substantive factors is still an unresolved problem.There are also some views that the principle of the benefit of the doubt should be introduced into the "possible text",and when the "possible text" is difficult to determine,the principle of "the benefit of the doubt" should be adopted.In addition,it can be determined according to the necessity of punishment.However,these two positions are mainly based on criminal law standards,which may not be conducive to achieving a balance of interests among equal subjects in civil law and other laws outside of criminal law.Generally speaking,there is a shift from a formal judgment to a substantive judgment in the judgment of"possible meaning",and this position is agreeable in principle.The fourth part is to explore the position of "possible meaning".Although this paper agrees with the trend of transforming formal judgment to substantive judgment,it must not abandon the fundamental position of legal interpretation: legal doctrine.The development of legal research from unchanging to variable and from closed to open is the inevitable path.Although formalism suffers from the impact of social development,"formalism" and "substantiveism" are not completely mutually exclusive,but only when it comes to the marginal part of the concept,friction occurs.The core meaning of language ensures that the normative intent of the law is essentially carried out,and therefore the consideration of substantive factors must be based on formalism.The fifth part is the examination of the positive element of "possible literary meaning".From the standpoint of legal doctrine,conceptual analysis is the first positive element in determining the scope of "possible meaning".Although concepts are often stereotyped,concepts in the legal system cannot reject substantive elements,but differ only in the extent to which they contain them.Although the deconstruction trend in linguistics and philosophy is beginning to encroach on jurisprudential territory,the change in the meaning of language does not change the connotation of concepts,but only the correspondence between concepts and words.The second positive element in determining the range of possible meanings is the use of systemic thinking to supplement conceptual analysis.The legal system provides a source of value judgment for the judgment of possible meaning,and it contains the logical relationship between the whole and the parts.When conceptual analysis is not enough to solve the problem,the solution should be expanded through the use of system thinking and the logical construction of the system to achieve the best interpretation result.The sixth part is the examination of the negative elements of "possible meaning".When judging the scope of "possible meaning",we need to be alert to the replacement of conceptual analysis by conceptual reconstruction and the application of analogy brought by functional argumentation.Conceptual reconstruction is the backward projection of the interpretation process,which presents personal will in the form of conceptual analysis by deconstructing the connotation of concepts,with the intention of supporting the conclusion of the purpose consideration through seemingly justified reasons;functional argumentation requires more value filling than conceptual analysis,which makes more extra-legal factors intervene in the argumentative process and makes it easy to do the analogical application in the name of expanding the interpretation.Only by being vigilant to the above practices and correctly handling the balance between "stability" and "justice" can the concept of fair and just justice be practiced to the maximum extent.The law is not omnipotent,just as no one is perfect.Things are constantly developing and changing,as long as we can reflect,progress and reach a better level,it is the success of development. |
