Emotion,Nous,Law In Legal Interpretation

"Emotion﹑nous﹑law"is a prominent characteristic of traditional legal doctrine﹑norm and practice in China. The common traditional trail criteria are sense first﹑moral conduct and calm-down dispute. But modern nomocracy society emphasizes impartiality and rational spirit which challenge this soft understanding. Law becomes more complex﹑technical and professional, and the close tripartition appears difficult surmountable crisis. In this thesis, legal interpretation doesn't been analysed in political system, but happens in judicial procedure. Judges comprehend meanings of legal text and legal fact based on these mutual relations. They want settling lawsuit and gaining social approval in the guidance of legal methods and value principles to achieve legal force and social effect's unity. In this process, sense spirit also influences judge's thinking way and trial result. But, modern legal system asks for more logic methods such as discursion and argumentation. Judges should obey law, excluding the populace's sense or social demands. Finally, judges are in the tangle of text with truth﹑legal principle with sense. When each sticks to the argument, breaking subjectivity and objectivity's dichotomy, persisting in sense principle to make legal interpretation highly effective and smart become a creditable way to extricate from human rational and volitional localization. At the same time, legal interpretation's practical wisdom develops in the dialogue of past with present﹑tradition with modern﹑emotion with ration﹑the masses with the outstandings and keep with agility. Replant legal system and traditional culture resources exchange. Ours democracy and nomocracy obtain idea basis and survival lands. Facing developing chances, legal interpretation's deep quest bears realitic possibility, when China constructs nomocracy. Legal modernization, in one hand, requires law's independency in favour of nomocracy's establishment and substance; in another hand, trys for popular deep concern in answer to legal democracy. When sense remolds law, it indicates that modern nomocracy is not only a social -control way, but a living rational manner which the masses can accept at large. Social members form law belief from the bottom of heart. Remolding relationship of"Emotion﹑nous﹑law", this thesis gives some advice to Chinese legal interpretation's system, hoping to get common understanding and deep construction of nomocracy in a democratic dialogic pattern.