Research On Kaufman's Legal Access Theory

Kaufmann thinks that the views of natural law and analytical positivist law are too absolute and one-sided,so we should explore the third way.He objected to implicative theory because implicative theory believed that legal acquisition only involved deduction.He thinks that law is the opposite of existence,he opposes the dualism of separating the ought to be from the real,and thinks that the process of law acquisition is the process of mutual adjustment between norms and facts.Kaufmann's theory of analogy presupposes that the two things to be analogized have the same in some parts,and he thinks that all things have the same in some parts.Kaufmann believes that there is also recognition in normative field,but it is not as accurate as empirical field.The confirmation of normative knowledge can be carried out by the theory of truth aggregation.He believes that accuracy in natural science is not the goal of every discipline,and that legal science cannot be as accurate as natural science.Kaufman's theory is based on philosophical hermeneutics.Hermeneutics holds that the process of understanding things is a process in which the subject and the object participate at the same time.The goal of understanding is not objectivity,but intersubjectivity.Kaufmann believes that the concept of legal acquisition is based on the traditional concept of legal application and legal discovery.In order to refer to both at the same time,the two concepts are collectively referred to as legal acquisition.Legal acquisition can also be called the process of legal application or the process of legal realization.The traditional implicative theory holds that it is wrong to conclude the judgment only through syllogism in the judicial process.The procedure of legal acquisition includes not only the process of implicature,but also other procedures before implicature,such as establishing evidence,induction and analogy.The establishment of evidence is the first procedure of legal acquisition,which is also called pre understanding or foresight.This procedure is inevitable.Induction is the formation process of case norms and an uncertain inference.Analogy is the comparison between the cases fully covered by the case norms and the facts of the pending cases,which is an uncertain inference.Deduction is the final procedure of legal acquisition.The conclusion is drawn through the big and small premise of the case,which is a definite process.The procedure of law acquisition is the combination of rational and irrational factors.Kaufmann thinks that law is not a matter of substance,and law has the characteristics of relation.The process of legal acquisition is a process of mutual adjustment between norms and specific cases.Kaufmann completely presents the specific process of legal acquisition,and the essence of things occupies the core position in the process of legal acquisition.Kaufmann's theory has attracted the attention of some scholars in China,but it is also beingquestioned.There are some differences between Kaufmann's theory system and traditional hermeneutics,which may cause the internal context of the theory to be uncoordinated;Kaufman's theory of legal acquisition involves rational deductive reasoning and other irrational factors,which may cause the uncertainty of law;whether the interpretation of legal concepts has universality;law under Kaufmann's theory of legal acquisition Is it binding?But Kaufmann's theory can also provide us with new research ideas,which can be used for reference in our judicial practice.Kaufmann's theory of legal acquisition involves value,which can promote the combination of formal rule of law and substantive rule of law;Kaufmann believes that comprehensive argumentation and reasoning should be carried out in judicial documents,which can promote the reform of judicial documents;Kaufmann's specific judicial procedures can provide guidance for judges;the irrational elements in legal acquisition procedures can make up for the defects of law making.