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On Trial Activities of Judicature from the Perspective of Philosophical Hermeneutics

Author: LiZhu
Tutor: LiShunWan
School: Southwest University of Political Science
Course: Legal Logic
Keywords: Philosophical hermeneutics Subject and object dichotomous thinking Judicial Syllogism Methodology of legal hermeneutics
CLC: D90
Type: Master's thesis
Year: 2011
Downloads: 34
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Abstract


Traditional legal methodology, legal formalism With the typical pattern of legal reasoning - the judicial syllogism of logic rational attempt to put an end to a judge's subjective self-willed, and to ensure the objectivity of the administration of justice. In the eyes of the law school of the ultimate concept of formalism Law, even judges on the interpretation of the canonical texts are not allowed. The judicial syllogism only in the case of the size of the premises which have been given the order to launch virtue of logical rules the inevitability referee conclusions. So, later scholars in order to compensate for the judicial syllogism congenital deficiency on the premise of building a legal reasoning, they had to resort to other outside judicial legal reasoning technology - interpretation of the law, the methodology of legal hermeneutics came into being. Systematic explanation of legal hermeneutics scholars hoping to ensure the objectivity of legal interpretation, and thereby the judicial syllogism logical reason peerless merged together for the administration of justice, the objectivity escort escort. Traditional legal methodology, however, the objectivity of legal interpretation and referees conclusion firmly believe that, in essence, it is a superstition interpret the phenomenon of Justice in the subject-object dichotomy thinking mode of modern Western rational philosophy. Began Heidegger into Gadamer's philosophical hermeneutics, based on the analysis of human existence, the traditional epistemological philosophy turned to a new kind of ontological philosophy. This philosophy ontological dimension of hermeneutics to understand as human existence, rather like the previous methodology hermeneutics that understand the thinking of some kind of objective intent of the inquiry as the main interpretation activities. It should be said that the ideological content of philosophical hermeneutics, dig up the foundation of rational philosophy - subject-object dichotomy mindset is a drastic rebel tradition of rational philosophy. Therefore, traditional legal methodology made first in-depth theoretical reflection, to expose its own can not overcome the inherent predicament - the pursuit of legal interpretation and the the referee conclusions objectivity is impossible to achieve. Fundamental reason for this dilemma is not due to the traditional legal methodology advocated wrong way, but it has been the kind of subject and object of the modern rationalistic philosophy dichotomous thinking interpretation judicial phenomenon of results. Then, we to philosophical hermeneutics pioneered new perspective, theoretically trial activities in the judicial practice made a new interpretation. For example, the effect of philosophical hermeneutics historical principles, a good interpretation of the existence of the spread in the history and tradition of the legal text, its meaning is not some kind of an enacted fixed closed the things, but in the long course of time, judges face specific cases every understanding of events continuously generated from. In another example, the front of the philosophical hermeneutics is the theory provides a new point of view, but also for us a new understanding of the role of the judge in the trial, the judge is no longer as a purely rational subject but as a living historical tradition can not not inevitably will be with the people see the reality before the true and false. In another example, the the philosophical hermeneutics dialogue theory, as we maintain dialogue between judges and legal texts and litigants theoretical origin, so that the judge made interpretations for the text of the law and the parties of the referee conclusions are able to avoid arbitrariness is suspect.

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