Objectivity Analysis Of Judicial Interpretation Of The Law

Legal hermeneutics is a branch of jurisprudence. Recently it has become a hot and influential discipline attracting the widespread attention from the domestic jurisprudential circle. Inspired by it, the author decides to make a study of legal hermeneutics. In order to expand the spirit of rule of law in consideration of the status of legality in contemporary China, the author chooses objectivity of legal construction as his studies.This dissertation is composed of five parts. The first two parts mainly prove the objectivity of legal construction theoretically while the other parts chiefly expound the methodology that is how to realize the objectivity of legal construction. In theoretical illustration, the author assimilates the viewpoints of Gadamer and Posner. Though their standpoints are not completely identical since Gadamer emphasizes that comprehension is a process of fusion of horizons while Posner pays attention to the practical value of legal construction, both of them are against absolute objectivity and regard the legal construction itself as a process of creation and lay stress on the rationality of legal construction. It provides theoretical basis for exploring the objectivity of difficult cases.In order to clearly reflect the objectivity of legal construction in the term of technical treatment, the author classifies the cases as difficult cases and simple and easy cases in the level of concrete operation. Simple and easy cases have relatively strong objectivity, which is replicable and equal to the objectivity in the scientific sense put forward by Posner. "Same case, same result" is the typical portraiture of such kind of objectivity and such kind of objectivity can be obtained though deduction and analogy. The objectivity of difficult cases is comparatively weak and hard to seek. So Posner calls it "objectivity of conversational rationality" which underlines reasonableness or comparatively right result and the dialectical ratiocination is the way to realize it. This showsthe complication of legal construction indirectly and illustrates that law is an art that a man should spend a long time studying and practicing it before understanding it.Part I, acknowledgment of legal objectivity. The author gradually clarifies the legal objectivity by changing the legal objectivity.Part II, development of hermeneutics and comprehension of objectivity of construction. This part mainly expounds how to conduct comprehension and construction, what the objectivity of construction is, and the influence of philosophical hermeneutics on legal hermeneutics.Part III, objectivity of legal construction. The author gradually clarifies the objectivity of legal construction by analyzing the views about legal construction of modern and contemporary times. Objectivity of legal construction expresses the determination of legal construction and non-individualizing inclination of the man who conducts the construction. In the term of technical treatment, this part separately discusses the objectivity about simple and easy cases and difficult cases. It provides theoretical basis for finding way to study legal construction.Part IV, goal and method of pursuing the objectivity of legal construction. This part inspects the goal and method of legal construction. In order to reach the objectivity of simple and easy cases and difficult cases, the way is pointed out in the preferential mode of legal construction.Part V, construction of legal fact. This part elaborates the concept and characteristics of legal fact, and expounds the finding and explanation of fact.Part VI, way of realizing objectivity of legal construction--legal ratiocination. This part discusses the legal ratiocination of simple and easy cases and difficult cases. The objectivity of both kinds of cases is ascertained through legal ratiocination.