论法律解释中的立法者原意
发布时间：2019-05-16 06:31
【摘要】：本文以对法律解释中立法者原意的批判为核心,并且全文旨在说明一个问题:即盲目遵循立法者原意为什么是不正当的。文章以对美国宪法解释中的原旨主义理论研究为背景,通过对立法者原意解释诸种变体的总结和梳理,从中汲取关于同样适用于法律解释中立法者原意的营养,分析在法律解释中运用立法者原意存在的相关问题。前三部分通过对立法者原意解释的研究对象、概念界定、基本观点等基础理论研究后,重点从技术层面和规范层面两个方面,逐步论证立法者原意是否客观存在以及存在的形态、立法者个人意愿如何汇成统一的机构原意、立法原意解释结论何以不具有正当性等问题。在全面细致地分析了为什么在法律解释中不应该盲目遵循立法者原意的探讨后,通过对德沃金法律假说理论的深入分析,最后对法律解释中其他的可行性道路进行了进一步探讨。在对立法者原意的技术性批判方面,通过对个体立法者原意和集体立法者原意的批判,重点探讨了立法者原意本身是否存在以及立法者原意汇集的可能性和途径,通过论证笔者承认立法者原意是客观存在的,但是笔者所承认的立法者原意的真实存在并不是原旨主义者通常所理解的那样:认为立法者原意是事实性的、是解释的唯一指南、是民主的要求、是不带有个人价值的最客观公正的法律解释方法。我们所承认的立法者原意必须要通过一种道德推理去论证、要通过正确的民主理论来进行构建才能够得出,这时存在的立法者原意一定是带有价值性的。同时我们发现虚构的立法者原意同样是事实性的,基于虚构的立法者原意的解释方法其正当性是值得质疑的。对于立法者原意规范层面的批判,笔者首先从立法者原意论的正当性基础出发,从真正的民主理论开始分析,论证以"民主理论"为基础的立法者原意理论的正当性及其批判。同时通过审美假说理论进一步引出法律是什么:法律绝不是统治阶级压迫另一个阶级的工具,法律从本质上来讲是政治性的,法律是与公共权力的使用相关。通过对法律概念、宪政概念的分析从而提出德沃金的法律假说理论,即在法律领域,法律是要保障人人平等,是通过限制公权力的行使来追求公平正义,进行法律解释活动为的就是实现这样的法律功能,而不是为了避免解释者在解释法律时加入个人价值判断而找到一个所谓的最客观的解释方法,从而盲目的遵循立法者原意。通过对法律假说的论证以及对立法者原意理论的解构,笔者尝试通过对抽象意图和具体意图的区分,探寻出抽象意图意义上的立法者原意的替代性方法,从而进一步强调法律的统治不是一个人统治所有人,不是已经死去的立法者统治世代的后人,法律是不同世代人合作的产物,我们需要参考过去立法者的原意,但是立法者原意的解释方法绝不具有垄断性。最后,通过这样的分析从而进一步探寻出法律解释的第三条道路,这是一种优越于立法者原意解释方法的新路径,在这条道路上,法律解释者在法律假说之下不得不运用价值判断,同时得出的解释结论又是客观的,这种价值判断不是将解释者的个人主观价值判断加进去,更不是解释者道德性的个人评价,而是当法律解释者面对法律时以一种法律假说去看待法律。
[Abstract]:This paper is at the core of the criticism of the meaning of the legislators in the interpretation of the law, and the full text is to explain a question: blindly following the meaning of the legislators' original intention. Based on the study of the fundamentalism in the interpretation of the American Constitution, the author draws a summary and a comb of the variations of the law by means of the intention of the legislators, and draws on the nutrition which is equally applicable to the original meaning of the legislators in the interpretation of the law. The analysis of the relevant problems in the legal interpretation of the use of the meaning of the legislators. The first three parts, through the research object, concept definition, basic point of view and other basic theories, which are intended to be interpreted by the legislators, focus on the two aspects of the technical level and the normative level, and gradually demonstrate the existence and the existence of the legislators' intention. The legislative intent of the legislative intent is to explain why the legislative intent of the legislators is not justified. After a thorough and detailed analysis of the reason why the legal interpretation should not follow the original intention of the legislators, the author further discusses the other feasible ways in the interpretation of the law through an in-depth analysis of the theory of the German legal hypothesis. In the technical critical aspect of the original intention of the legislators, through the criticism of the original intention of the individual legislators and the original intention of the collective legislators, the author has focused on the existence of the original intention of the legislators and the possibility and means of the intention of the legislators. By proving that the author has admitted that the original intention of the legislator is objective, the real existence of the original intention of the legislator, which is recognized by the author, is not generally understood by the fundamentalists: it is the fact that the legislators are intended to be factual and the only guide to the interpretation is the requirement of democracy. It is the most objective and fair legal interpretation method without personal value. The legislators that we have admitted must have to go through a moral reasoning to prove that the construction of the correct democratic theory can lead to the conclusion that the existing legislators have to be of value. At the same time, we have found that the original intention of a fictitious lawmaker is also factual, and its validity is questionable based on the interpretation of the original meaning of the fictitious lawmaker. On the basis of the legitimacy of the original intention of the legislators, the author first starts the analysis from the true democracy theory, and proves the legitimacy and the criticism of the theory of the original intention of the legislators based on the "theory of democracy". At the same time, the law is further drawn through the theory of the aesthetic hypothesis: the law is not the tool of the ruling class to oppress another class, the law is political in nature, and the law is related to the use of the public power. By analyzing the concept of the law and the analysis of the concept of the constitutional government, the author puts forward the theory of the legal hypothesis of DeVaukin, that is, in the field of law, the law is to guarantee the equality of all, and to pursue the fairness and justice through the restriction of the exercise of the public power, and the legal interpretation is the realization of such a legal function. Rather than to avoid the interpretation of the interpretation of the law, the author finds a so-called most objective interpretation method, so as to blindly follow the meaning of the legislators. Through the demonstration of the legal hypothesis and the deconstruction of the theory of the original intention of the legislators, the author tries to find out the alternative method of the legislator's original intention in the meaning of the abstract intention through the distinction between the abstract intention and the specific intention, thus further emphasizing that the rule of law is not a rule for all, The law is the product of the cooperation of different generations, and we need to refer to the original meaning of the past legislators, but the method of the interpretation of the original intention of the legislator is in no way monopolistic. Finally, through such an analysis, the third path of legal interpretation is further explored, which is a new path that is superior to the method of interpretation by the legislators, on which the legal interpreter has to make use of the value judgment under the legal hypothesis, At the same time, the conclusion of the interpretation is objective, which is not to judge the individual's subjective value and not to explain the personal evaluation of the person's moral character, but to view the law with a legal hypothesis when the legal interpreter is facing the law.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D901
本文编号：2478088
[Abstract]:This paper is at the core of the criticism of the meaning of the legislators in the interpretation of the law, and the full text is to explain a question: blindly following the meaning of the legislators' original intention. Based on the study of the fundamentalism in the interpretation of the American Constitution, the author draws a summary and a comb of the variations of the law by means of the intention of the legislators, and draws on the nutrition which is equally applicable to the original meaning of the legislators in the interpretation of the law. The analysis of the relevant problems in the legal interpretation of the use of the meaning of the legislators. The first three parts, through the research object, concept definition, basic point of view and other basic theories, which are intended to be interpreted by the legislators, focus on the two aspects of the technical level and the normative level, and gradually demonstrate the existence and the existence of the legislators' intention. The legislative intent of the legislative intent is to explain why the legislative intent of the legislators is not justified. After a thorough and detailed analysis of the reason why the legal interpretation should not follow the original intention of the legislators, the author further discusses the other feasible ways in the interpretation of the law through an in-depth analysis of the theory of the German legal hypothesis. In the technical critical aspect of the original intention of the legislators, through the criticism of the original intention of the individual legislators and the original intention of the collective legislators, the author has focused on the existence of the original intention of the legislators and the possibility and means of the intention of the legislators. By proving that the author has admitted that the original intention of the legislator is objective, the real existence of the original intention of the legislator, which is recognized by the author, is not generally understood by the fundamentalists: it is the fact that the legislators are intended to be factual and the only guide to the interpretation is the requirement of democracy. It is the most objective and fair legal interpretation method without personal value. The legislators that we have admitted must have to go through a moral reasoning to prove that the construction of the correct democratic theory can lead to the conclusion that the existing legislators have to be of value. At the same time, we have found that the original intention of a fictitious lawmaker is also factual, and its validity is questionable based on the interpretation of the original meaning of the fictitious lawmaker. On the basis of the legitimacy of the original intention of the legislators, the author first starts the analysis from the true democracy theory, and proves the legitimacy and the criticism of the theory of the original intention of the legislators based on the "theory of democracy". At the same time, the law is further drawn through the theory of the aesthetic hypothesis: the law is not the tool of the ruling class to oppress another class, the law is political in nature, and the law is related to the use of the public power. By analyzing the concept of the law and the analysis of the concept of the constitutional government, the author puts forward the theory of the legal hypothesis of DeVaukin, that is, in the field of law, the law is to guarantee the equality of all, and to pursue the fairness and justice through the restriction of the exercise of the public power, and the legal interpretation is the realization of such a legal function. Rather than to avoid the interpretation of the interpretation of the law, the author finds a so-called most objective interpretation method, so as to blindly follow the meaning of the legislators. Through the demonstration of the legal hypothesis and the deconstruction of the theory of the original intention of the legislators, the author tries to find out the alternative method of the legislator's original intention in the meaning of the abstract intention through the distinction between the abstract intention and the specific intention, thus further emphasizing that the rule of law is not a rule for all, The law is the product of the cooperation of different generations, and we need to refer to the original meaning of the past legislators, but the method of the interpretation of the original intention of the legislator is in no way monopolistic. Finally, through such an analysis, the third path of legal interpretation is further explored, which is a new path that is superior to the method of interpretation by the legislators, on which the legal interpreter has to make use of the value judgment under the legal hypothesis, At the same time, the conclusion of the interpretation is objective, which is not to judge the individual's subjective value and not to explain the personal evaluation of the person's moral character, but to view the law with a legal hypothesis when the legal interpreter is facing the law.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D901
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