Interpretation Of The Law: To Obey Or Create

In the history of jurisprudence, judicial process draws much attention. There are many difficulties in the judicial process because of its complexities, the antinomy between "obedience" and "creation" is one of them. What part the judge should be? Whether the judge should obey the law absolutely or they can create the law by interpretation, which is our puzzle for long.Judges are required to obey the law in the judicial process, and the principles of the rule of law express the need of obedience in many ways. Accordingly, the conventional objectivity theory requires judges obey the law strictly, providing a series of method, such as literal interpretation, context ,interpretation, historical interpretation, objective meaning interpretation, and so on, to avoid the random decision. However, the limitation of the conventional objectivity theory is exposed with the passage of time. In the face of the complexity of social reality, the inevitability of gaps in law is already substantiated by practice. In spite of the gaps, the judge cannot reject making-decision, the judge have to fill the gaps by creating. In fact, the acceptance of the gaps means the validity of the power of creative interpretation. Judges usually fill the gaps by the application of analogy, teleologic extension and reduction, balance of values. In my opinion, the "gesetze-subersteigende" should not be part of the legal interpretation. In addition, the creativity of legal interpretation is affirmed by philosophical hermeneutics well. In the eyes of philosophical hermeneutics, all the processes of interpretation hold the creativity, the meaning of object come into being by right of comprehending, so, the being of creativity is not only peculiar but also universal. The creative interpretation brings the justice and the growth of law. Meanwhile, the creativity brings lots of uncertainty, if the judge gets the discretion, in all probability he can make the decision arbitrary. It is an overthrow to the rule of law that the result of interpretation depends on the judge's mind.That is the contradiction between "obedience" and "creation". In the abstract, the root of the conflict is the contradiction between philosophical hermeneutics and the conventional objectivity theory, which is from start to finish. However in the practice, the conflict is...