Reconstruction And Perfection Of The Theory Of Objectivity Of Law

The concept of objectivity is first proposed in the field of philosophy.The "objectivity" advocates that things are independent of human consciousness.The concept of "objectivity" in the field of law is similar to that,and that the concept,meaning,answer and criteria of the law are independent of the subjective consciousness of the founder or the judiciary.And exist.Since the seventeenth Century,the development of rationalism has deeply influenced the codification of continental Europe.It is generally believed that the perfection of the grammatical law and the scientific interpretation method can make the law form the objective and unique evaluation results and criteria.Therefore,the "objectivity" of the law can be realized completely.However,in the twentieth Century,the theory of objectivity of law was criticized fiercely by all kinds of schools of law,and the theory of objectivity of law was in crisis.The different schools of law begin to reflect on whether the "objectivity" is still of practical significance.Many scholars have put forward the theory of "objectivity" of the salvation law in the context of the present era,and deconstruct the objectivity theory and reconstruct the objectivity of the law with a new perspective.The legal hermeneutics,formalist jurisprudence and pragmatist jurisprudence,as a representative reconstruction school,put forward the approach to save the "objectivity" theory,in order to build the bridge of the objectivity theory of the law.The legal hermeneutics,represented by Dworkin,puts forward the standard of "the only correct answer",and deduces the way of realizing objectivity with the method of legal interpretation;taking the formalism as the representative of Marx Webb,it reconstructs the view point of "formal rationality" and "substantive rationality",and proves that the use of the form is reasonable to prove the guest.On the basis of pragmatism,Posner takes the pragmatism as the method,and thinks that the objectivity of the law is reasonable and acceptable.Habermas has put forward the theory of "objectivity in the meaning of conversation",which is represented by Habermas,taking the process of communication as the context or background of analysis,giving full play to the initiative of human communication and building the most.A low degree of consensus reconstructs the "objectivity" theoretical system of law in the new context and perspective.Based on the academic viewpoints of various schools and under the background of rule of law society,this paper reconstructs objectivity from the perspective of pragmatism.The discussion of the objectivity of the pragmatist school provides us with a new way of thinking.The realization of objectivity needs to play the active role of the judiciary,play free space on the basis of the certainty of law,maintain the "objectivity" framework of the law,and adjust the justice of the case in order to realize the multi-dimensional objectivity system.The judge is in the discretion of the case.It is necessary to realize the balance between the two kinds of values: the objective standard of law and the subjectivity of human thinking,the rational control of subjective evaluation factors and the former view of the judiciary from the perspective of thinking and cognition.The purpose of the judicature is to realize the "reasonable rationality" of the law rather than the "objectivity" of the law under the previous large framework,and at the same time,it is constructed.Good judicial restraint and supervision mechanism,in the framework of clear and specific legal rules,the establishment of legal thinking,legal methods,and the organic combination of supervision and restriction mechanism,in order to realize the objectivity judicial discretion mechanism under the rule of law social background,improve the judges' professional community,in order to wait for legal problems in the same context of conversation.It can be solved.The system of "objectivity" is built to maintain the authority of the rule of law,to enhance the enforceability of the law,to reestablish the "objectivity" theory system of the law and to establish the kingdom of the rule of law.