On The Solution Of Collision Between Legal Rule And Legal Principle

My thesis is how to resolve the collision between legal rule and legal principle. It presuppose that legal norm is divided into legal rule and legal principle, that is, law do not only consist of legal-rules, but also legal-priciples. Thus, we need to research the concept of norm and legal norm. Basing upon the concept, we analyse the nature and substance of the collision between legal rule and legal principle. According to the analysis, we argue how to properly resolve it. It is the legal princple's scheme that is relatively suitable. In the light of the scheme, the legal rule that collides with the legal principle is transformed into another legal principle, then, the legal principles are weighted and balanced. This means my thesis has come to be associated with the application of legal principle. Application of norms necessarily includes justification of norms on which its result depends. Justification of norms can be distinguished between the internal and the external justification. Thereby, the justification of legal principles includes the internal and the external aspects. In accordance with the above views, except the intrudction and the epilogue, this paper consists of four parts.The first part elaborates the senses of norm, the language-dependence of norm, the ontology of norm, analyses the concept of the validity of legal norm, describes the differences between legal rule and legal principle, classifies the collision between legal norms into: the conflict with legal rules, the competition between legal principle, the collision between legal rule and legal principle. The second part of paper first puts forword the reasons why legal rules can collide with legal principles, analyse the nature and substance of the collision between legal rule and legal principle. On the basis of above views, we discuss the opinions about how to resolve the collision between legal rule and legal principle. The scheme for it contains: the different layers'scheme, the legal rule'scheme, the legal princple's scheme. We think that the final scheme is relatively proper.The third part of paper dicusses the internal justification of legal principles. The charactical way of application of legal principles is weighting or balancing. One may call the formal structure of balancing or balancing"Weight Formula". The Weight Formula is represented by a scheme that works according to the rules of arithmetic. The objects of weighting include: the degrees of interference,the impotance of abstract weights and the degrees of reliability.The final part talks about the external justification of legal principle. Its subject-matter is the justification of premisses used in the process of internal justification. The premisses used in the process of internal justification of legal principles cantain: the degrees of interference, the impotance of abstract weights and the degrees of reliability. In order to justify the premisses, we introduce to the theory of coherence. According to the theory, the premisses should be coherent with the propositions which include the canons of legal interpretation, the sources of the law, the precedents, the legal dogmatics.