The Difficulty Of Legal Determinacy

The dispute between the determinacy and indeterminacy of the legal has become one of the propositions in modern jurisprudence.This dispute directly concerns whether the law can provide an unique and correct answer to legal disputes in the process of law application.Hart advocated the open structure of the law and opened up another way to provide the third way to resolve this dispute.Then,it is necessary to investigate how Hart inferred and demonstrated the open structure of the law.In Hart's theory of legal rules,the rule of recognition is the core.The recognition of the rule is a factual question in terms of its own existence.In terms of its validity,it is the source of the validity of legal rules.But even if the rules are to be recognized,they cannot escape the indeterminacy of the margins of social practice.That's all about the indeterminacy of language.On the basis of Austin,Hart introduced the daily language analysis method advocated by L.Wittgenstein,and tried to establish a relatively perfect legal science through the daily language analysis.Because of its neglect of the interactive relationship between language and behavior and its excessively neutral position of legal positivism,it has failed.At the same time,the indeterminate nature of this language,Hart introduced it to the theory of law,thus proposed the open texture of the law.The open structure of the law,as a the third way,is both opposed to the extreme formalist conception of law and also to the argument that rule skepticism is a myth about discussion of rules.Dworkin's denial about of the rule of recognition and the all-or-nothing claim on the application of the rules are also a misunderstanding of the legal structure and even the open structure of the law.Looking back at the reality of China's rule of law from the perspective of Western historical experience and theoretical opinions of different schools,we can see that the modernization process of Chinese law has always been legislative-oriented.The large-scale legislation of the government is an important way to promote legal rules.However,large-scale legislation cannot make up for the undeterminacy of the legal.China's legal rules should be between the open structure and the determinacy of the law,and should be close infinitely to the open structure of the law in the future.