The Indeterminacy Of Law And The Way Of Overcoming It

The indeterminacy of law refers to the existing legal norms cannot provide unique reasonable solution to pending social disputes within its framework. Correct understanding the legal Indeterminacy and proper treat the problem is necessary. It has great significance for the maintenance the scientific of and faith of ruled audience for law. The first part of this paper, based on the summary of existing academic research result on the legal indeterminacy, detailed analyze the connotation of "law" and " indeterminacy " which are the two basic concepts in the proposition of legal indeterminacy. Through the compared and analyzed of the different definition of concept, eventually defined the scope of this paper in the aspect of substantive law level, and the indeterminacy problem due to reasons of the law own. The second part of this paper, carries on the analysis on this issue from the perspective of the history of legal thoughts. Comb the cognitive process of legal indeterminacy theory in accordance with the order of his torical development. And connect deterministic theory in different periods with its time and social background, in order to find the development venation. The third part of this article, mainly analyzes the legal indeterminacy in reality basis. Type analys is through the uncertainty correlation theory and different situation in judicial practice. This paper argues that reasons of the legal indeterminacy can be summarized into three types, namely the legal language defects itself, the limited rationality of legislator, judicial response under the change of social and legal concept. Based on clear the reason of legal indeterminacy, this paper discuss the positive significance of the possible existence in legal indeterminacy. The main content of the fourth part of this paper is the necessity analysis and the way of overcoming the indeterminacy of the law. Due to the representative problems of uncertain cases exist in the field of social cognitive area, will lead to the public making a high subjective judgment on the issue of the probability, as few cases obtained the ability to influence public faith in the law. So the importance of the indeterminacy problem do not have any necessary connection with the absolute number exist. And the overcoming for it is the unavo idable reality problem for legal construction. Based on the analysis of the indeterminacy, when dealing with the problem of indeterminacy, the system design should be carried out from three angles. First of all, should on the basis of recognizing the objective existence of indeterminacy, guarantee the realiza tion of the subjective determinacy of law as the goal. From the normative system level and the social cognitive level two perspectives of judicial process conduct progressive analysis for indeterminacy. Provide the most reasonable solution to the dispute cases, to ensure that the uncertain performance is limited to a reasonable range. Secondly, after indeterminacy overcame in the field of judicial should collect, analyze, integrate the overcome way of the indeterminacy, and determine the most reasonable solution for promoting, so that make the judicial solution to enter the space legislation. Finally, should focus on the cultivating of the public’s faith in the law. Based on the correct understanding of t he legal indeterminacy in the public, achieve the unification of objective indeterminacy and subjective determinacy of law.