Return To Legal Hermeneutics As Methodology

In the middle of 20 century or so, the so-called ontological turn of Hermeneutics happened in the west world. Hermeneutics developed from methodology about understanding and interpretation into a kind of philosophy which regards understanding as an existence of human beings. Scholars of Philosophical Hermeneutics, Gadamer as the exponent, endeavored to overturn the traditional paradigm of methodology. Accordingly, some people in legal field inherited the principles, concepts and attitudes from Philosophical Hermeneutics, and criticized traditional paradigm of legal interpretation as methodology, trying to make a new paradigm of legal interpretation as ontology. How to deal with these two kinds of legal interpretation? Can they parallel and coordinate with each other, or we have to choose only one in legal interpretation?A little later than the ontological turn of Hermeneutics, it happened the postmodern turn of western world during 70s in 20 century. The so-called Postmodern Hermeneutics of Law criticized modernity of rule of law and separation of powers, challenged values of objectiveness, certainty, universality in modern legal system. The arguments between modernity and post-modernity of legal interpretation, together with arguments between methodology and ontology in legal hermeneutics, involve with the status of paradigm of legal interpretation. This is an important issue about contemporary legal hermeneutics. It is not only valuable in research, but also valuable in judicial practice to probe into present situation of related study home and abroad, and to put in proper place the paradigm of legal hermeneutics. We should safeguard the paradigm of legal hermeneutics as methodology and its modernity foundation with strong argumentation or justification.This dissertation, apart from Introduction and Additional Discussion, consists of eight chapters. Introduction part tells the background of research selected, and summarizes general framework of the current situation of the related research home and abroad, emphasizing the significance of research on the paradigm of legal hermeneutics. Moreover, the author introduces the basic standpoints and main innovations in this dissertation.Chapter 1 mainly refers to the criticque of paradigm of ontological hermeneutics in law. The author discusses the similar mistakes made by Arthur Kaufmann in two cases, and then points out the deep roots lie in that Kaufmann inherited reader response theory of Philosophical Hermeneutics, oblivious of intention of the author as the standard, so fall into relativism and subjectivism. The ontological turn of Hermeneutics does not mean that hermeneutics as ontology has been surpassed by hermeneutics as methodology. The author justifies that principles, concepts and attitudes of Philosophical Hermeneutics do not apply to legal interpretation. Legal hermeneutics should return to classical methodological paradigm, defending objectiveness and certainty of legal interpretation, and opposing subjectivism and relativism of Philosophical Hermeneutics.Chapter 2 is about one of the core issues of legal hermeneutics, that is subjectivity of legal interpreter. The author justifies that legal interpreter' s subjectivity depends on interaction with such factors as author, text and reader. The author's authority and its systematization ensure the classical properties of the text and beliefs in the author; the establishment of authority with the text accompanies the acceptance of the author's authority; through holy understanding,interpreting and applying the text, the reader strengthen the classical properties of the text and the beliefs in the author. To put his subjectivity in place, the legal interpreter should discard the postmodern hermeneutics, and meanwhile should properly return to the classical hermeneutics by applying the two-process method of exegesis-hermeneutics. Chapter 3 is about arguments on modernity and post-modernity of legal interpretation. The author agree that justice according to law is the general state of rule of law, whereas justice without law is only an expedient measure used for amending the limitations of rule of law. Legal Hermeneutics is an outcome of the above endeavor. As a kind of expedient measure, legal hermeneutics is a subsidiary of rule of law, though it has become a complicated and advanced knowledge. Legal interpretation is a kind of normative, doctrinal interpretation, not a recreational, free-for-all interpretation. The legitimacy of legal hermeneutics lies in modernity, not post-modernity. Post-modern hermeneutics advocates innovation, pluralism and diversity, overthrows the foundation of modern legal interpretation which predetermines objectiveness, certainty and universality as values of rule of law. We should safeguard modernity of legal methodology.Chapter 4-8 mainly discuss the classical canons of legal interpretation, such as canon of semantic interpretation, canon of logic interpretation, canon of historical interpretation, canon of systematic interpretation, and canon of interpretation which can be regard as a special case of systematic interpretation. The author explores the true meaning of the five canons, their methodological function and value, and applies them to many real judicial cases.Chapter 4 involves canon of semantic interpretation. The author argues that the meaning of semantic interpretation refers to a method of obtaining or making clear the thought and intention of legislator though interpreting legal text which is seen as some legislator' s media for communicating with the interpreter. Semantic interpretation includes two sides: one is plain meaning rule; the other is specialized meaning rule. The most valuable methodological function of semantic interpretation is that it can restrict the framework of meaning of legal norms. The so-called Extensive Interpretation and Restrictive Interpretation depart the plain meaning rule, so there are great risks of twisting the law. Actually they are some kinds of making law by judges.Chapter 5 is about canon of logic interpretation. The canon of logic in legal interpretation involves not only the logic of the legal text itself, but also the logic of law-finding process which is the core of legal methodology. Nobody can deny the functions of classic canon of logic in legal interpretation in dealing with many simple cases. The complicated phenomena of relation between facts and norms raise more requirements for the functions of canon of logic in legal interpretation. With the development of modern logic, people have deeper and richer acknowledgement of the canon of logic in legal interpretation. The argument of experience over logic by 0. W. Holmes, Jr. was once regarded as anti-logic flag. Actually it is a partial conclusion by those who give no attention to people with narrow knowledge of logic and experience in Holmes's era.Chapter 6 is about canon of historical interpretation. According to the author, the meaning of canon of historical interpretation refers to that interpreter must abide by the position of legislator, make clear the prescription from the perspective of history which restrained the process and nature of creating law. What the interpreter discovers should be the intention contained in the legal text, and this must also be the legislator's intention. We should not connect canon of historical interpretation only with historical materials and backgrounds, and we should not cut canon of historical interpretation off the legal text. The most valuable methodological function of historical interpretation is to restrain the judge's arbitrariness. Explicit historical purpose of norms is the very important object and reasonable boundary line.Chapter 7 is about canon of systematic interpretation. The canon of systematic interpretation involves the inner and outer legal system, and also refers to the narrow sense and broad sense of systematic interpretation. It can mean the interpretation from connection of logic and value with the rules in the same law or in the different law divisions; it can mean the interpretation caused by the collision of different rules in different law divisions, including the collision rules between common law and the constitution; As a method of the interpretation of textualism, systematic interpretation has powerful methodological function, though it has to face at the same time some limitations of the law.Chapter 8 is about canon of constitutional interpretation or conformity with constitution interpretation. The constitutional interpretation is that when some legal norm possibly has more than one explanation, the judge, according to his duty, must choose the explanation most conformable to the constitution, meanwhile keep the norm remains in effect. It is a legal method in modern society when the constitutional values are emphasized. It is a symbol of the constitutional judicialization in legal hermeneutics. In essence, it is the extension of systematic interpretation in traditional legal methods to public law area. To appropriately use this method in judicial process, we must abide by such principles and rules as the presumption of constitutionality. The constitutional interpretation has practical significance in respecting and protecting human rights, in building a rule-of-law state, and it is an effective way to constitutional judicialization in China.Additional Discussion deals with the orientation of legal hermeneutics in China. The author discusses legal hermeneutics how to respond to judicial practice. As the most important part of legal methodology, legal hermeneutics must provide scientific methods for realizing rule of law. In order to enhance its capability of responding to judicial practice, legal hermeneutics should probe the more universal theoretical model of the legal interpretation method by the approach of indirect participating in judicial practice; and it should, by the approach of direct(or quasi-direct)participating in judicial practice, analyze and argue the cases, then rectify and improve the theoretical model, finally form a more applicable, mature system of rules of legal interpretation which are appropriate for China's actual circumstance.