On Legal Certainty

The certainty of law is one of the focuses of modern Jurisprudence and postmodern jurisprudence. Different answers to this question leads to different attitudes toward the rule of law. The essence of modern jurisprudence is or external rule of law, the theoretic premise is that men have the reason making an all-embracing and perfect legal system. When confronted with actual problems, the judge only need to apply the regulations firmly according to the Syllogism Reasoning. Then the only correct judgement can be attained. But the exaggeration of human reason leads to the separation of law and social reality. In response to it, Sociological Jurisprudence, criticizing jurisprudence and postmodern jurisprudence tend to criticize the external rule of law and allege the uncertainty of law due to their different philosophical theories. So that the rationality for the existence and the achievement for the realization of modern rule of law comes a problem.This article tries to combine modern jurisprudence and postmodern jurisprudence with relevant philosophical trends, especially the epistemology, in order to find the inherent logic in their formation and development. Based on it, this article takes a further step to discuss the relationship between the independence of law and certainty of law and current situation, obstacles and outlook of the construction of the rule of law in China in the context of postmodernism. Moreover, the answer to the future of modern rule of law is kind of attempt by this article. And the article tries to discuss it by seven parts:The first part is a preface introducing the origin of the certainty of law, its importance in western jurisprudence and the roughly thinking for answering this question. And this part tells the analyzing way and the framework of this article.The second part is to introduce the basic concepts connected with the certainty of law and the fundamental problems needed to answer. They are: First, what do the certainty of law and the uncertainty of law mean? Second,the arguments for the existence of the certainty of law. Third,the dissertation of the uncertainty of law made by modern jurisprudence and postmodern jurisprudence and how they do the reasoning.In the third part, the author begins with the change of modern philosophical epistemology, and have analyzed the philosophy fundamental of some typical legal schools in order to find the inherent logic in their formation and development. In brief, external jurisprudence is based on rationalism and analytical positivism while sociological jurisprudence(realistic jurisprudence included) is based on empiricism, empirical positivism and positivism. The jurists such as Hart have brought new analytical jurisprudence into the analysis by the day-to-day language philosophy, and Ronald Dworkin has combined the analytical jurisprudence with Lon Fuller's legal procedure theory.In the fourth part, the author beginning with the origin of the postmodern jurisprudence explains the tactics denying the certainty of law: against the Essentialism of law, against the separation of subject and object, against the certainty of language. Moreover, criticizing jurisprudence cannot be included into the postmodern jurisprudence, because it differs very much with postmodern jurisprudence in academic character and purport. But due to its attitude toward the certainty of law, the author would discuss it in this part.In the fifth part, there is a very important point that the seeking for the independence of law by modern rule of law accords with the seeking for the certainty of law. Both the independence of law and the certainty of law are inevitable reasoning result and inherent attribute of external rule of law. So either the explain to the independence of law or the reflection to itself, it is in connection with the answer to the certainty of law by modern jurisprudence and postmodern jurisprudence.In the sixth part, the author tries to tell how to conquer the challenge the uncertainty of law asserted by postmodern jurisprudence under the Chinese social situation. China is in the process of transferring to modern society, and the rule of law hasn't been established. There are many obstacles for the construction of rule of law, and these factors lead to the disillusion of the romantic rule of law and the disappointment to the rule of law by people. At present, we should be careful about challenge to the rule of law by the postmodern jurisprudence, or the construction of rule of law in China would be in danger. The author holds a point that while we should proceed in the construction of rule of law, we should also build up a fundamental which rule of law relies on. And the main task is to build up the opinion about rule of law, so the effectiveness of law can be attained.In the last part, from a view that there is always a trend searching for the knowledge basis by the western philosophy, connected with different answers to the certainty of law, the author tries to make an brief analysis of the inherent logic of the formation and development of modern jurisprudence and postmodern jurisprudence. Then from the social reality, the author tries to meet the questions(whether the law is certain or not, and the degree of the certainty of law if so) objectively. To put it clear, the certainty of law is objective, but there are some factors which are uncertain. The factors that result in it are: language, regulations, power, human nature, etc. So we can only seek a kind of limited, relative certainty. Based on it, there come a conclusion that we can only achieve the rule of law based on relative certainty of law. By now, it seems that the best solution is the legal procedure theory holding the democratization of legislation and the routinization of judicature. But it is not a final conclusion. We should hold a open attitude to the form and approach of modern rule of law in order that we keep some room and possibility for the continuous development of modern rule of law.In the demonstration of this article, there are two threads. One is different answers to the certainty of law, the other is the search for the basic knowledge by modern philosophy, the similar search for legal basis by modern jurisprudence and the attitude for the searching by postmodern jurisprudence. The two interact. Moreover, we cannot equate the certainty in philosophy with the certainty in law, because the former is about whether the proposition is certain or not. It's an attitude about the proposition. And it is not equal with actual truth, for we can make sure a proposition is true, and we can also make sure a proposition is not true. The latter is not only about the Ontology of law is certain or not, but also about the certainty in reasoning when applying the law methodologically.