民主理论对法律解释方法的影响——基于美国制定法解释方法演变的分析
发布时间：2018-08-18 17:34
【摘要】：法律解释方法的形成受到多方面因素的影响,民主理论是其中最重要的因素之一。美国20世纪前对民主会带来多数专制的极度担忧,促使了制定法解释方法上平义论的形成,20世纪中期臻于鼎盛的乐观的多元主义民主观笃信民主过程可以生产妥当的公共政策,促使了制定法解释方法上意图论和目的论的形成,而之后的公共选择理论致力于揭示政治自由市场这只"看不见的手"的负面影响和民主过程的失灵,促使了制定法解释方法上"新文本论"的产生。
[Abstract]:The formation of legal interpretation method is influenced by many factors, among which democratic theory is one of the most important factors. Prior to the 20th century, the United States was extremely worried that democracy would bring most autocracy, which prompted the formation of the doctrine of equality in the method of interpretation of laws. The optimistic pluralistic democratic view, which flourished in the middle of the 20th century, firmly believed that the democratic process could produce proper public policies. This led to the formation of intention and teleology in the method of statutory interpretation, and the subsequent theory of public choice was devoted to revealing the negative effects of the "invisible hand" of the political free market and the failure of the democratic process. It promotes the emergence of "new text theory" in the interpretation method of statutory law.
【作者单位】： 南京师范大学法学院;
【分类号】：D082;D971.2
[Abstract]:The formation of legal interpretation method is influenced by many factors, among which democratic theory is one of the most important factors. Prior to the 20th century, the United States was extremely worried that democracy would bring most autocracy, which prompted the formation of the doctrine of equality in the method of interpretation of laws. The optimistic pluralistic democratic view, which flourished in the middle of the 20th century, firmly believed that the democratic process could produce proper public policies. This led to the formation of intention and teleology in the method of statutory interpretation, and the subsequent theory of public choice was devoted to revealing the negative effects of the "invisible hand" of the political free market and the failure of the democratic process. It promotes the emergence of "new text theory" in the interpretation method of statutory law.
【作者单位】： 南京师范大学法学院;
【分类号】：D082;D971.2
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