法律解释：从方法论向本体论的转变
发布时间：2018-10-24 12:40
【摘要】：本体论视域下的法律解释是建立在哲学解释学的基础上的,其与实践的紧密联系,更是适应了实践法学的发展要求。本体论视域下的法律解释是一种区别于方法论的法律解释,这取决于本体论视域下的法律解释在实践生活的热切呼唤下,紧紧地结合了本体论风格的解释观。方法论的法律解释是当下理论界有关法律解释的主流思维方式,这种思维方式极大的促进了法律解释的发展,甚至从一定意义上促进了法治的进步,但是方法论的法律解释有着其自身难以克服的缺陷,在方法穷尽时很难再拯救焦急的法官。方法论法律解释将理解、解释和应用分为三个独立的领域来研究,本体论法律解释却主张这三个方面是相互影响、相互制约的,应该当作统一的整体来研究。本体论视域下的法律解释具有着本体论(实践法学的基础上)所具有的品质和性格,从而使本体论法律解释具有了旺盛的生命活力和适应司法实践的基础。可以说,本体论为法律解释不仅提供了富有生命力的内涵,也为法律解释提供了研究问题所使用的区别于方法论一种思维方式。这些品质和思维方式有机结合下的法律解释,形成了独具特色的本体论法律解释。所以,本文在研究本体论视域下的法律解释时,必定不能脱离社会实践发展的客观现实,在法律解释的过程中必须以实践的思维方式来关怀人的生活,也只有这样,我们的研究才更具有说服力和完整性。 本文在整体结构上,首先,对法律解释的成因和法律解释的对象做了概括性描述,主要是从法律解释的主体“人”的“理解”本质、法律规范的特点以及两者之间的互动关系方面进行说明法律为什么需要被解释；另一方面从法律解释的内容方面进一步探究法律解释的特点,了解到法律解释不仅要从法律文本角度出发来进行研究,更要从案件事实出发来研究。其次,从方法论视域下法律解释的特点及缺憾两个方面剖析方法论法律解释,得出方法论法律解释有着其自身的优点,但更有自身难以克服的缺陷,所以要对方法论法律解释的价值进行评估,寻找其它拯救法律解释的路径,即方法论法律解释的本体论转向。最后,本文重点介绍本体论法律解释的哲学基础、实践品格以及法律解释从方法论向本体论转向的必然性。本体论法律解释是有着深刻的实践基础的,它以辩证的实践思维为其思维方式,注重培养解释者的实践智慧,以实践理性为其理性基础,以让人生活的更好为其解释理念和目的追求。 本体论法律解释不是对方法论法律解释的完全否定,而是对其的扬弃,既主张吸收法律解释方法合理的一面,又清楚的认识到这种单纯的技术化解释方法给法律解释带来的局限并试图对其进行超越。但是本体论视域下的法律解释目前仅能能为我们提供一种理论上的指引,在具体的司法过程中还需寄希望于实践的要求和理论的完善。
[Abstract]:The legal interpretation under the ontological horizon is based on the philosophical historical materialism, which is closely related to the practice, and also meets the development requirements of the practice law. The legal interpretation under the ontological horizon is a legal interpretation that is different from the methodology, which depends on the legal interpretation under the field of ontology and closely combines the interpretation of ontology style with the eager call of practical life. The legal interpretation of methodology is the mainstream thinking mode of legal interpretation in the current academic circles, which greatly promotes the development of legal interpretation and even promotes the progress of the rule of law in a certain sense, but the legal interpretation of methodology has its own insurmountable defects. It is hard to save the anxious judge when the method is exhausted. The legal interpretation of methodology will be understood, interpreted and applied into three independent fields, and the ontological legal interpretation claims that these three aspects influence each other and restrict each other and should be treated as a unitary whole. The legal interpretation under the ontological horizon has the qualities and character of ontology (which is based on the practice law), so that the ontological legal interpretation has the basis of vigorous life vitality and adapting to the judicial practice. It can be said that ontology is legal interpretation not only provides the connotation of vitality, but also provides the difference between methodology and methodology for legal interpretation. The legal interpretation of these qualities and modes organically combines the unique ontological legal interpretation. Therefore, in the study of legal interpretation in the field of ontology, the objective reality of social practice development must not be divorced from the objective reality of social practice development. On the whole structure, firstly, the origin of legal interpretation and the object of legal interpretation are described in a general way, mainly from the main body of legal interpretation, "man\"\ "\\"\ "\" Understanding the nature of the law, the characteristics of the legal norms and the interaction between them; why the law needs to be interpreted; on the other hand, further inquiry into the legal interpretation from the contents of the legal interpretation It is pointed out that the interpretation of law should not only be studied from the angle of legal text, but also from the facts of the case. Secondly, from the characteristics of legal interpretation and the interpretation of methodology law from the perspective of methodology, it is concluded that the legal interpretation of methodology has its own advantages, but it is more difficult to overcome. Therefore, it is necessary to carry out the legal interpretation of methodology. To evaluate and find other paths to save legal interpretation, that is, the ontology of legal interpretation of methodology. Finally, this paper focuses on the philosophical basis, practical character and legal interpretation of ontology legal interpretation from methodology to ontology. The ontological legal interpretation is based on deep practice, which takes dialectical practice thinking as its thinking mode, pays attention to the practical wisdom of the interpreter, and takes practical reason as its rational basis, so as to make human life better for its explanation idea and purpose. The explanation of ontology law is not the complete negation of legal interpretation of methodology, but its sublation. It not only advocates the reasonable side of legal interpretation method, but also clearly realizes the limitation of this simple technical interpretation method to legal interpretation and tries to correct it. It goes beyond. However, the legal interpretation under the ontological horizon can only provide us with a theoretical guidance. In the concrete judicial process, we also need to hope the practical requirements.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90
本文编号：2291446
[Abstract]:The legal interpretation under the ontological horizon is based on the philosophical historical materialism, which is closely related to the practice, and also meets the development requirements of the practice law. The legal interpretation under the ontological horizon is a legal interpretation that is different from the methodology, which depends on the legal interpretation under the field of ontology and closely combines the interpretation of ontology style with the eager call of practical life. The legal interpretation of methodology is the mainstream thinking mode of legal interpretation in the current academic circles, which greatly promotes the development of legal interpretation and even promotes the progress of the rule of law in a certain sense, but the legal interpretation of methodology has its own insurmountable defects. It is hard to save the anxious judge when the method is exhausted. The legal interpretation of methodology will be understood, interpreted and applied into three independent fields, and the ontological legal interpretation claims that these three aspects influence each other and restrict each other and should be treated as a unitary whole. The legal interpretation under the ontological horizon has the qualities and character of ontology (which is based on the practice law), so that the ontological legal interpretation has the basis of vigorous life vitality and adapting to the judicial practice. It can be said that ontology is legal interpretation not only provides the connotation of vitality, but also provides the difference between methodology and methodology for legal interpretation. The legal interpretation of these qualities and modes organically combines the unique ontological legal interpretation. Therefore, in the study of legal interpretation in the field of ontology, the objective reality of social practice development must not be divorced from the objective reality of social practice development. On the whole structure, firstly, the origin of legal interpretation and the object of legal interpretation are described in a general way, mainly from the main body of legal interpretation, "man\"\ "\\"\ "\" Understanding the nature of the law, the characteristics of the legal norms and the interaction between them; why the law needs to be interpreted; on the other hand, further inquiry into the legal interpretation from the contents of the legal interpretation It is pointed out that the interpretation of law should not only be studied from the angle of legal text, but also from the facts of the case. Secondly, from the characteristics of legal interpretation and the interpretation of methodology law from the perspective of methodology, it is concluded that the legal interpretation of methodology has its own advantages, but it is more difficult to overcome. Therefore, it is necessary to carry out the legal interpretation of methodology. To evaluate and find other paths to save legal interpretation, that is, the ontology of legal interpretation of methodology. Finally, this paper focuses on the philosophical basis, practical character and legal interpretation of ontology legal interpretation from methodology to ontology. The ontological legal interpretation is based on deep practice, which takes dialectical practice thinking as its thinking mode, pays attention to the practical wisdom of the interpreter, and takes practical reason as its rational basis, so as to make human life better for its explanation idea and purpose. The explanation of ontology law is not the complete negation of legal interpretation of methodology, but its sublation. It not only advocates the reasonable side of legal interpretation method, but also clearly realizes the limitation of this simple technical interpretation method to legal interpretation and tries to correct it. It goes beyond. However, the legal interpretation under the ontological horizon can only provide us with a theoretical guidance. In the concrete judicial process, we also need to hope the practical requirements.
【学位授予单位】：河北经贸大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90
【参考文献】
相关期刊论文 前1条
1 张志铭;法律解释概念探微[J];法学研究;1998年05期
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