On Kaufmann's Thoughts In Legal Methodology

2001 The Year April 11, Arthur Kaufmann was passed away in German Munich, enjoying 78 years old of year. Neumann, the professor of Frankfurt University, wrote in mourn memorial text of Kaufmann:" The international law philosophy lost a researcher of first-rate, the international law philosophy and social philosophy associations lost an authorities, we lost a great man."Learn the legal methodology thought to carry on comb to thus a method of great man, have the necessity very much. His method learns the methodology thought to differ from we usually say of methodology, but more is a kind of epistemology. Borrow this, he take the hermeneutics into the law, and change into legal hermeneutics. This text is divided into five parts totally: The source and the development that Kaufmann's legal methodology; Thought of legal hermeneutic; Justice procedure theories; Analogy; The characteristic of introspect and tolerate in his theory.His legal hermeneutic theory bases on subjective and objective. This differs from the traditional positivism, that Excludes the subjective from the explanation process, or the subjective is restricted within narrow limits. He opposes the pure science reasonableness of traditional positivism. He thinks that the object of the legal explanation is not a text originally, the but a kind of relation, the purpose of the legal explanation is not to look for the absolute and objective truth, but" mutually subjective" truth.He animadverts to the legal argument theories, and introduces the justice procedure theory that' put forward to make people the center. He thinks that the biggest shortage of the legal argument theories is that they thinks and can abandon history and fact, and acquire the absolute objective truth. He thinks to talk about the legal argument theories is right in the formality, but need to join the contents, at this, he thinks what to join is not the existence of the entity, but the existence of the relation. He found out" person", being placed in the person in the relation, not the person as the individual. At this, he opposes the objection entity existence theories, and pure form existence theories, but lay claim to the relation existence theories. The traditional positivism thinks that the process that the law realization turn is the process that the syllogism be used for, Kaufmann thinks the process of the law realization is simplified. He thinks that the process of the law realization is the result of the interplay that syllogism, induction, subjunctive etc. He calls this mode as' analogy'. He thinks that analogy is the thinking of a' type', the only has its meaning center, but the extension is misty, the meaning center of the type is' The Essence of The Thing'. He think syllogism if is a kind of logic deduction, is also a kind of deduction that has the risk, because it is very the difficult to be describe the by the logic clearly, it is also coefficient result of a knowledge and arbitrary decision.The thought of Kaufmann has the characteristic of introspect, tolerate and the pluralistic are the core of his thought, he pays attention to the realization of the value of people in the pluralistic society. Although scholars also put forward to query, we think that he is one jurist that has conscience and let person respect of. His heart keeps in mind the whole world, but did not limit taste within the scope of law. He is also a jurist that pays attention to method and strategies. He realize only discuss on the concrete methodology is to can hardly have the breakthrough, the methodology must rise the epistemology and annotation then can enough at alleviate the indetermination that methodology have basically. Therefore, we should be historical and tolerant to Kaufmann and his thought.