Incompletely Theorized Agreement In Legal Interpretation

The tension between legal rule and the legal fact in judicial adjudication is the problem this paper attempts to face directly.In judicial practice,the judge agreed to the understanding of the legal text and interpretation may be all can not completely consistent,thus resulting in the ongoing debate according to different legal interpretation methods,and its core dispute is that which meaning interpretation method can release the best answer.In this paper,the first chapter is through carding the existing methods of interpretation,showing that in the face of legal texts,whether from the as a kind of ideal with dedication to find a high level of theory,is probably hard to provide a practical solution.Indulging in taking he rules as the center,trying to seek the only correct solution of the legal interpretation is often doomed to fail to bridge the tension between the legal norms and facts.Under this background,incompletely theorized agreement is proposed as a possible solution to the problem of the judicial adjudication.The second chapter of this paper is mainly about the specific interpretation of analogy inference and incompletely theorized agreement.Before elaborating on the meaning of incompletely theorized agreement,the first concern is analogy inference which enables people to reach the incompletely theorized agreement.The main task of analogy inference is to determine the similarity between two similar cases,and to decide on the basis of substantive and low-level reasons.After elaborating the action model and main characteristics of the analogy inference,this paper concludes that the analogy inference is suitable for the law explanation which is not unified,the judge law thinking hard to highly theoretical and must take some of the cases as the reference point on the legal system.Then this paper discusses the connotation and classification of incompletely theorized agreement,lists its positive effects and its specific expression which are embodied in the various statutes.Under the theory of incompletely theorized agreements,the legitimacy of the judicial decisions adopt almost pragmatic logic.The theory of incompletely theorized agreements represented by analogy commits to build the theoretical foundation with low level,and completes a good interaction with the constitution and other laws,so as to reach the broadest agreement.The third chapter mainly discusses the criticism and response to the incompletely theorized agreements.The deductive inference people are used to is threatened by the incompletely theorized agreements.The questioning of the major premise leads people to doubt the validity of the output result.Therefore,from the side of the rule to the fact side,facing the judicial decision by the view of focusing on the pragmatism,may be a worth considering path.At the same time,this paper makes a study of Dworkin,who is a prominent critic and pursues the only correct solution compared with the practical incompletely theorized agreements He advocated that the highly theoretical self-consciousness in judicial activities can serve as a kind of ideal at least,thus he claims that legal interpretation contains as much as possible in order to make the suitable law's best efforts,the judge shall have the duty to make the existing law materials become a scheme with continuity.Then this paper by comparing normativismus with pragmatism that the judicial decisions moves to,thinks that choosing the solution of incompletely theorized agreements that is under the fact of accepting the imperfect reality,looks on correctly the advantages and disadvantages of not incompletely theorized agreements.The fourth chapter is about the enlightenment of incompletely theorized agreements to China's judicial practice.Incompletely theorized agreements are not only a principal line of judicial judgment,but also the one of analogical reasoning behavior.And the case guided system our country is increasingly perfect,which the inherent logic of theory may be the incompletely theorized agreements.According to the case guided system,we can achieve the same judicial goal,establish the legal authority and improve the judicial credibility.