The Indeterminacy Of Law And Its Inference Method

The uncertainty of law is objective and cannot be eradicated in legislation. In 1960s, foreign scholars gradually realized that "positive law" is an uncertain, not self-contained and open system, which made"legal uncertainty" the focus of legal methodology. In recent years,Chinese scholars have done a lot of research on it, but are mainly concentrated in the study of legal uncertainty concept, history and practice and case combination, and in legal theory research, to explore the contents of legal uncertainty is very scarce. Therefore, the use of logical methods can provide new solutions to legal uncertainty.Most scholars translate "indeterminate" into "uncertainty", but"indeterminate" is more appropriate to translate into uncertainty. The reason lies mainly in the existence of an intermediate zone between certainty and uncertainty, which uses uncertainty to reflect its constant proximity to certainty rather than complete uncertainty. The uncertainty of law mainly refers to the uncertainty of legal rules. Only the legal rules have relative certainty, and the legal reasoning is deterministic.Finally, the results of judicial decisions can be determined. At the same time, it also states that the problems arising from the uncertainty of law can not be changed through the subjective ability of legislators, and can only be determined by judicial decisions.According to the research of related scholars, the legal uncertainty is divided into three types: Legal doubt, legal loophole and legal conflict. The law refers to the law really doubt stationery "open" or"limited relative uncertainty" refers to the rule of law; legal loopholes and corresponding cases cannot be found in the process of judicial adjudication, namely law; conflict of law refers to legal writing and legal principles, contrary to the spirit, or directly applicable legal rules will be cause of injustice. From the angle of legal methodology,the corresponding deduction methods are put forward according to three uncertain types: unclear legal meaning, legal loophole and legal conflict.The method of contextual inference is mainly to solve the legal doubt;the analogical reasoning method is to solve the legal loophole; the reductive deduction, the dialectical deduction and the equity deduction are three ways to solve the legal conflict.The significance of the study of legal uncertainty lies in preventing the open field of law from becoming the field that the referee can freely do, and further realizing the certainty of the law in the case. The inherent uncertainty of the law itself is inevitable, and the use of logical methods can effectively define the applicable scope of the law and limit the discretion of the judge. Thus, the realization of the rule of law is not a "beautiful", but impossible to achieve mirage.