From Objectivism To Open The Law Explained

Legal interpretation is a valuable and practicable field in law. But there is disagreement between Chinese and the western about the understanding and practice of legal interpretation, the most different of which is about the judge's interpretation. With the appearance and foundation of the modern nation-state, the western form a tradition of objectivism legal interpretation. This interpretation tradition changed by reason of the difficulties in theory and practice after the mid of last century. This thesis tries to make clear the progress of the western legal interpretation theory through reviewing the evolution of this theory and analysis the necessity and feasibility of the judge's interpretation in China to do good to Chinese legal construction and legal reformation.The penman explain the tradition of objectivism legal interpretation of the western in the part one of this thesis. For a long time, law is believed as a logic and closed system. Moreover, judge just make the truth of life correspond with the rules of laws like microphone. So, the judge's interpretation is a course in which judge search the objective intention of legislators discarding all the subjective factors. People believe is law as a kind of logos. judge scrupulously obey the cross-bencher law that is abstracted as justice and righteous marks. So legal interpretation has the character of dogmatism.As the turning of philosophy hermeneutic and impact of trend of thought of offspring modern times, the above theory faces the most difficulties. People are suspicious of the confirmation of law. judge sometimes did not know how to apply law. The juridical process began to suffer the torment. The part two of this thesis analyses the difficulties that the theory of traditional objectivism legal interpretation in theory and practice and values the traditional reasoning method. The difficulties that the theory of the western legal interpretation encountered make it change itself.The theory of legal interpretation after changed transfers the center from legislator to judicatory. The legal interpretation becomes to be a exoteric system. The target of judge is not only to find the interpretation from law but also to do a right judgment. For getting a acceptable judgment, judge must explain the law that they apply to the case. A right and acceptable judgment not only rests with the justness of the law that the judge applies to the case but also depends on whether the acceptability of the legislator and party and legal process is in accordance with the standard and require of the acceptability. the part three of this thesis absorbs the study production of the theory of legal arguement and researches the theory of legal interpretation in the field of legal arguement.The part four of this thesis argues the revelation that the contemporary legal interpretation theory takes to Chinese legal reform. The penman thinks that we should admit and guarantee the judges'right of legal interpretation in practice and keep away and restrict their arbitrariness in the interpretation.