| What is law? It is a eternal problem for jurists, so we can see both legal positivism and natural law theory cannot deal with the Munchhausen-trilemma whatever they try to do for it. If the law has been conceived as a kind of practical reasoning, we must look for the third road beyond legal positivism and natural law. As Kaufinann has point out that the law exists in interaction between ought and is, that is, law is something existing in relations. So we can conclude that implication of law embodies in concrete case. That is our start point of studylegal concept.What is legal concept? The traditional view in our law circle is the result of rationalism in philosophy in fact, and such view is also held by English jurist, David Walker. But from the point of Kaufinann's theory, legal concept can be understand as the basic unit of statute, with common values held by the whole law community, whose meaning will be determined in concrete case in judicial process. Obviusly such view is opposite with the traditional one.To examine the role of legal concept in presentation of law, we will survey the change of standpoint for legal concept in legal theory. Different views have been attributed to it, that is, in natural law theory, the most important legal concept is conceived as abstract justice; while for legal positivism, the most important thing is to construct a logic consistant system and not to find the true implication of it; and also for sociology of law, legal concept has disappear from their eyesights, since they have reject the normativity of law, which is subjected to social end. In a word, legal concept is studied from legislator's point of view in natural law theory and legal positivism, and sociology of law results in another radical point when it develop its theory from judicature's point.Certainly, the differences above derive from their different wiews on the goal of legal interpretation. Generally speaking, the natural law theory is of the opinion that the law should be interpreted objectively according to values of law; and analytical jurisprudence believes that the law should be interpreted conforming to legislator's subjective wills; while sociology of law also claims that the law should be interpreted objectively, but it is another kind of theory different from our understanding. As a whole, the previous three kind of theories are not suit for judicial practice, and we are the opinion that objectivism is more suitable above all, and we will put reaching consensus as the ultimate goal of interpretation of legal concept. So we will find that the tension between stability and appropriateness in judicialapplication of law becomes a essential problem in legal interpretation. That is, various arguments in legal interpretation can in fact be regarded as trying to cope with relation between stability and appropriateness.As we know that abstract justice is unpredictable as a kind of standard for judicial application of law and is not easy to attain, so we will replace it with the concept "appropriateness".Although the concept is not the same as the traditional idea of justice and has some non-rational factors in it, but it is more suited for regulating judicial process. Thus the paper will concentrate on the relation between legitimacy and appropriateness on problem of interpretation of legal concept.Firstly, we will relate to legitimacy of interpretation of legal concept. It can be understanded as the character of conformation with law in judicial practice. The condition for attaining legitimacy of it is to make full use of the type thinking, that is, on the basis of interact between fact and norm, a judge' s decision will reach a high degree of consensus in the law community. It is not only the consensus between fact and norm, but also consensus aomong the law community. The process of realizing legitimacy is also be discussed in some concrete case in the paper, and we will find that different strategies have been used by judge and other parties in litigation to realize it. After previous discussion, we will conclude that although substantial value judgement exists before the "institutionalized" methods of interpretation, the latter control the concrete way to the former.As a kind of practical reason, the judicial practice tells us that a judge should also pay attention to appropriateness of interpretation of legal concept besides legitimacy mentioned above. As a best alternative on the matter, appropriateness here can be defined as the implications of legal concept should be adjusted according to balancing concrete interests or different claims beyond the possible scope of it attributed by the law community, which will reach consensus among more people. Perelman's concept of "audience" is used on approach to realize appropriateness, which how to meet popular audience's disire is very essential. Certainly, some non-rational factors' role is also affirmed in the previous discussion.Finally, the relation between legitimacy and appropriateness of interpretation of legal concept is related. Although legitimacy and appropriateness has been separated, they will be both used by judges to reach their goal. Even in some concrete application of law, different standards will be used by judges to interpret the same concept, if such interpretation can satisfy the needs of audience, and thus will reach consensus among all the audience on same legal concept. |
