The Discussion Of Methodological Winthin Legal Interpretation

The discussion of methodology of the legal interpretation is a significant subject of current research of Jurisprudence, and is an important aspect of the study of legal methodology. This thesis would introduce several argumentative methodology of legal interpretation from the argumentation about the case of Wu Ying, viz the centrism of reader, writer and text. Through the investigation of the case, the defects of both centrism of reader and writer would have been revealed by the argumentation itself about the case while by the legal analysis of centrism of text can dispose of the argument effectively, It is the thought of the centrism of text in the legal interpretation about the argumentation of legal interpretational methodology overcomes the defect of writer’s centrism, which merely focuses on the’writer’s intention’, and the defect of reader’s centrism, which only shed light on the reader’s purpose. It seems that the centrism of text has been a perfect conception in the legal interpretation even though it still exists some insurmountable problems, It is lack of the observation about the social context and would make the law to be rigid dogma. In some hard cases such as the case of XuTing, the stereotype of the centrism of text in legal interpretation makes people to question the law and legal justice. Both as an practical and theoretical doctrine, Gadamer’s Textualist only approve the legal before experience, disapprove the absolutism objectivity. It emphasizes the communication and integration between interpreter’s legal before experience and text itself, and it is in the communication with the authoritative text, it realize the interpretational integration.It realizes the shortages of the centrism of text, and makes it to be renewed. In this sense, the reborn methodology of legal interpretation resolves the discussion of legal methodology, and constructs an method of legal interpretation which bases on the core of textualist while absorbs some reasonable elements of reader’s and writer’s centrism. Under the direction of such methodology, it constructs an interpretational method which across the literary interpretation and objective purpose interpretation.The thesis mainly includes the following five parts:The first is the introduction. It mainly elaborates the problem of the origin, the central theme and research of the thesis, summarizes research methods and the purpose in the process of thesis writing. With the case of WuYing as the perspective of thesis, to explore the discussion of Methodological winthin Legal Interpretation from the discussion of the case, trying to solve the discussion of Methodological winthin Legal Interpretation and methods of legal interpretation, proposes the guidance how to interpret the law and apply laws.Chapter I mainly explores the discussion of Methodological winthin Legal Interpretation from the discussion of the case of WuYing. The first, from the focus of controversy of the case of WuYing to allude, which is discussing intensely in the nationwide-that is what is the purpose of accroach, the means of fraud, and unspecified-illegal fund-raising, at the same time, analyzing the focus of the discussion of case to find out Methodological winthin Legal Interpretation which wound the case of WuYing, viz the discussion of the centrism of reader, writer and text.Chapter Ⅱ explores the discussion of Methodological winthin Legal Interpretation from the viewpoint of the case of WuYing based of the first chapter, especially the game of the discussion of the centralism of readers and text. What is contained the kind of legal methodology in the case of WuYing? From the first instance judgment of the Court of Wu Ying, the seemingly strict verdict in accordance with the law, viz the methodology of the centrism of text used in the interpretation of the law. However, through in-depth analysis of the judgment, in which the word games begin to emerge, it points to the methodology within legal interpretation of the centrism of readers centrism behind the judgment of case of WuYing; Through the investigation of the case, the defects of both centrism of reader and writer would have been revealed by the argumentation itself about the case while by the legal analysis of centrism of text can dispose of the argument effectively, It is the thought of the centrism of text in the legal interpretation about the argumentation of legal interpretational methodology overcomes the defect of writer’s centrism, which merely focuses on the’writer’s intention’, and the defect of reader’s centrism, which only shed light on the’reader’s purpose’. It seems that the centrism of text has been a perfect conception in the legal interpretation, in some hard cases such as the case of XuTing, even though it still exists some insurmountable problems. It is lack of the observation about the social context and would make the law to be rigid dogma.ChapterⅢ continue to expand the unsolved problem of the centrism of text on the basis of chapter II, Gadamer’s hermeneutical to determine the problem of the centrism of text, which realizes the dynamic equilibrium in the interpretation, renewed the legal interpretation. As Gadamer said:If we generally have an understanding, then we are always in a different way in understanding, and it is from this sense that we say the legal hermeneutics task always starting from the thing itself to get rid of the pre-clearance, the former experience and grasp so as to ensure that the scientific nature of the topic. Obviously, law hermeneutics as philosophical hermeneutics, it abandoned just kind of absolutism objectivity, rather than the thing itself from objectivity. So much that it seek no objectivity explanation, rather say that it requires the interpreter to adhere to objectivity nominal; We are not trying to wipe out the objectivity, but objectivity may, we can see out of those effective for those who are not legal former see, to pave the way for legitimate former see of the hermeneutics objectivity. So it is in this sense, the centrism of text as the starting point of the legal hermeneutics precisely reflects the humility and wisdom of the hermeneutics and reflects the Six Classics Note I and I Note Six Classics; We know the lack of method and skill will cause inflexible of the rule by law. But if the rule is too flexible, there will not be rule by law too. In this sense, the reborn methodology of legal interpretation resolves the discussion of legal methodology, and constructs an method of legal interpretation which bases on the core of textualist while absorbs some reasonable elements of reader’s and writer’s centrism, and under the guidance of the idea to establish the effectiveness of the laws of the rank interpretation.Chapter Ⅳ-the conclusion of the thesis is a sublimation of the argument of full text, from the discussion of methodology within legal interpretation to outlook the future of legal hermeneutics, build the centrism of text as the core to legal interpretation. Law research should minimize the adverse effects of utilitarian, emphasis on researching the basic issues. From the long-term perspective of the rule of law in China, we should pay attention to the rules, legal methodology, in this sense, legal interpretation discipline should become a prominent discipline, and make greater efforts to the rule of law in our country.Accompanied by a decline in the status of the traditional interpretation of the law in the humanities and social sciences, in particular, along with the Western philosophical hermeneutics and jurisprudence steering, legal hermeneutics open a steering from methodology to ontological, however, this steering does not have practical significance for our country, after all, our country has not experienced a gradual process of the strict rule of law, did not experience the edification of rigorous, systematic methodology, at the same time, methodology is regarded as fluff in our holistic culture. In this historical context, if we blindly follow the trend, it will be bound to have a huge negative effect on rules of order and confidence in the rule of law that we have just established. The current uproar the case of WuYing should be bound to become a classic case of China’s interpretation of the law, she reflects the deviation from the rule of law and the lack of legal interpretation skills, strikes the alarm to people marched in the rule of law. The thesis The case of WuYing is a starting point to explore the discussion of methodology within legal interpretation, it is because of our contempt for the skill of legal interpretation leading to the negligence of the discussion of methodology within legal interpretation and not fully realize the difficulties and insufficient of legal interpretation which produced from the centrism of reader,writer, which had produced many judicial cases such as the case of WuYing, this damage of justice is incalculable, our hope the judicial given sub-ended contention and guardian of the last line of defense of the social function will be invalid and this is bound to make the defective administration of justice even more frail.Legal interpretation experienced a process from seeking to understand to self-understanding, there is a game between strict interpretation and broadly interpreted, the merits and demerits of the controversy never really eliminate, whether it is, however, no one could deny that methodology of legal interpretation have an influence on the rule of law, we know that the lack of methods and techniques of the rule of law will become dull and lack of wisdom, the only rules mechanical use of the rule of law is difficult to imagine, but there will not be if the use of the rules are too flexible rule of law, so that wisdom is the product which is strictly treat the rules. No strict rule authority, no wisdom, and wisdom is strictly and flexibly apply the rules, the technology and methods. The case of WuYing is not only a declaration of the end of an era, but sounded the clarion call of a new era-the era will soon passed away by a simple judgment declared that the case to the end, and the rational justification era by legal methodology to interpret law will be ready to come.