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Own Judge-made Law With The Judge

Posted on:2008-05-19Degree:MasterType:Thesis
Country:ChinaCandidate:J W MaFull Text:PDF
GTID:2206360215972817Subject:Jurisprudence
Abstract/Summary:PDF Full Text Request
Many deep crevasses have appeared on "the knowledge wall of certainty" after which met an unexpected challenge from skepticism. This event has a harmful influence on "the law of certainty"--the principles of law are no longer considered with a hundred percent certainty as it once was. The rationality of judicature to turn into a new problem challenged by the partial truth we face the evanishment of law definitiveness.This article attempts to inquire the validity of judicature and the control of the capricious of judges. In the legal argumentation. The diachronism of legal norms melts into the interspaces between the norm and the material fact, and it will come to be the primary direction of interpretation of law in simple cases; in hard cases, the discrepancy between norm and fact compels the judges to amend the defective norm or to fill the legal loophole. In fact, judge's freedom is unliberty due to diachronism itself. The free interpretation of legal norms has to be put under the pressure of the preconceptions. We should pay attention to the duplexity of preconceptions; on the one hand, the side of "productiveness" can urge the judge to make the rationality, correct judgment for amending or making the principles of law. On the other hand, the preconceived ideas can also bring up the misunderstanding, even it may sufficiently spoil the organism of" rationality and justice".Two different roads may eliminate "the conceit of the judges", one road is to shape the constructive preconceived ideas to train the legal thought for future judges. The second road is to reach a consensus by the communication between the judges and the people.
Keywords/Search Tags:judge-made law, hard case, the judge's conceit, preconception, common sense
PDF Full Text Request
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