On Trial Activities Of Judicature From The Perspective Of Philosophical Hermeneutics

In the traditional study of legal methodology, legal formalism tried to use the typical pattern of legal reasoning- logical reason of judicial syllogism to eliminate the subjective caprice of trial judge to ensure the objectivity of the administration of justice. In the eyes of Conceptual Jurisprudence, which is the ultimate of legal formalism, even the interpretation of the text of the specifications is not allowed. But only when the premises have been given, the judicial syllogism can infer inevitable referee conclusions of concrete cases from given premises by logical rules .So, in order to make up for judicial syllogism's inherent failing in build the major premise of legal reasoning , the later legal scholars have to recourse to other technology of jurisdiction, legal interpretation, outside of legal reasoning ,and then methodological legal hermeneutics came into being. Scholars of legal hermeneutics hope to use the systematic method of legal interpretion to ensure the objectivity of legal interpretation, then together with the logic reason of judicial syllogism to protect the objectivity of the administration of justice.However, the belief in the objectivity of judicial trial and legal interpretion of traditional legal methodology, in essence, is a superstition, a consequence from consturing judicial phenomenon under the thinking model"subjuet-object dichotomy"which is of modern Western rational philosophy. Philosophical Hermeneutics begaining from Heidegger and completing in Gadamer, based on analysis of the actual human existence, make the traditional philosophical epistemology switched to a new ontological philosophy. The Hermeneutics of this ontological dimension, take understanding as the way of human existence, instead of traditional methodological hermeneutics, who think understanding that is a activity by rational thinking to search some objective meaning. It should be said, the ideological content of philosophical hermeneutics, digging up the foundation of rational philosophy– thinking model"subject-object dichotomy", is a drastic rebellion to traditional rational philosophy .Therefore, firstly, this paper reflect deeply on the basic content of the traditional legal methodology, exposing it can not overcome its own inherent difficulties - the pursuit of objectivity of the legal interpretions and the conclusions of the referee can not be realized. The root cause of this predicament is not due to the traditional method of legal methodology advocated wrong way, but it has been the the result which from consturing judical phenomenon under the thinking model"subjuet-object dichotomy"which is of modern Western rational philosophy. Then, this paper from the new perspective created by philosophical hermeneutics, theoretically make a new interpretation of trial activities of judicial practice. For example,the priciple of effective history of philosophical hermeneutics, can interpret grately the existence of legal textst in spread of the history and tradition .Its meaning is not a kind of a fixed and closed something after its setting, but continuing to build from in waters of time the judge who trial each specific incident. In another example, the theory of prejudice of the philosophical hermeneutics, can give us a new point of view to understand the role of judges. The judge is no longer thinked as a subject who has pure ration ,but rather as a real man or woman with true and false prejudice who live in history and tradition. Again, the dialogue theory of philosophical hermeneutics can also be the theory of origin, from which we can maintent dialogue relations between judges and legal texts and litigants, so that the judge's interpretation of legal texts and his conclusions of trial to litigants can both avoid being suspect of arbitrariness.