法律解释范式下的立法者意图
发布时间：2018-07-23 20:20
【摘要】：20世纪60年代以来,西方哲学解释学的转向也带来了法律解释范式由方法论范式向本体论的转向。本体论范式下的法律解释理论在对传统方法论范式进行批判的同时,突出了法律解释者的主体性,试图以诠释的视角发现法律文本之意义。但是这种法律解释范式却存在着自身不可避免的缺陷,在理论和实践之中不断消融着立法权与司法权之间的分权界限,将法律解释的概念泛化,模糊了法律解释与法律续造的区别,进而动摇了传统以来人们对立法权威信仰的基础。本文就是在这一背景下,以立法者意图作为切入点,窥视在不同范式下法律解释的目标和方法,以期通过理论的建构来解决法律权威性的来源、明确司法权与立法权之间关系以及法律解释不同方法及目的等问题。本文主要从五个部分进行论述： 第一部分主要论述在哲学诠释学影响下法律解释学研究范式的历史发展。这一部分主要采用文献研究的方法,就哲学解释学对中西方法理学领域中的影响做一个脉络上的梳理,概括了目前理论界的两种基本法律解释学研究范式,并对这两种基本范式的思维方式和研究分歧点做了详细地论述。 第二部分主要涉及对法律解释学的本体论范式的批判性思考。这一部分提出本体论范式下的法律解释学在立法与司法领域产生的理论问题,本体论范式下的解释学忽视了法律文本本身的权威性,模糊了立法与司法分立的界限,容易导致主观主义和相对主义之中。在法律解释领域对于正确性的诉求并不能取代权威性的存在。因而法律解释学应该坚持在法律文本的意义框架内寻找裁判标准,以维护立法者意图的权威作为解释使命。 第三部分着重对立法者意图的概念进行探讨。笔者在第三章主要分析了目前理论界对立法意图的两种思考路径即解构式路径和重构式路径。试图通过对这两种路径的分析来明晰“立法者意图”在法律解释范式下存在的根本问题。解构式的路径通过将立法者以及立法者的意图虚无化,将立法者意图进行了解构。这种带有后现代主义色彩的思考方式对法治的确定性、普遍性提出挑战。重构式的路径在肯定立法者意图存在的基础上,对其进行了想象性重构,力图实现法律的统一性。但是这一路径却并没有将立法者的意图放到合适的位置上。针对前面章节所述的问题,笔者在第四章所对“立法者的意图”这一概念进行了理论的建构,以历史上的立法者与权威的立法者的区分为理论基点,将立法者的意图视为是立法者希望将现实的社会关系调整到最佳状态的意图。 第四部分则主要论述立法原意在法律解释范式下的定位及法律解释方法中存在的问题。立法意图既与法律解释的目标相关联,也与法律解释的方法问题相关联。由于长期以来学界缺乏对立法者意图的清晰定位和详细探讨,就导致了在法律解释的方法中出现了解释目的与解释手段的混同等问题,这些问题的存在也在某种程度上损害了法律的权威性。笔者认为,法律解释的目标应该是追求立法者的意图,而法律解释学的方法论就是围绕这一目标进行的为了实现法治的确定性,维护法律权威,法律解释则必须作为一种方法论的范式。
[Abstract]:Since the 1960s, the shift of Western philosophical hermeneutics has also brought the paradigm shift from the methodology paradigm to the ontology. The theory of legal interpretation under the ontology paradigm criticized the traditional methodology paradigm and highlighted the subjectivity of the legal interpreter, trying to find the meaning of the legal text in an explanatory perspective. However, this kind of legal interpretation paradigm has its own inevitable defects. It dissolves the dividing line between legislative power and judicial power in theory and practice, generalizes the concept of legal interpretation, blurs the difference between legal interpretation and legal continuation, and thus shaken the foundation of the traditional people's belief in the authority of the legislation. In this context, in this context, the purpose and method of legal interpretation under different paradigms is peered out with the intention of legislators to be seen in order to solve the source of legal authority through the construction of the theory, to clarify the relationship between the judicial power and the legislative power, as well as the different methods and aims of the legal interpretation. This article is mainly carried out from five parts. Discuss:
The first part mainly discusses the historical development of the research paradigm of legal hermeneutics under the influence of philosophical hermeneutics. This part mainly uses the method of literature research to sort out the influence of philosophical hermeneutics on the field of Chinese and western jurisprudence, and summarizes the two basic legal hermeneutics paradigms of the current theoretical circles. These two basic paradigms of thinking and research differences are discussed in detail.
The second part mainly involves critical thinking about the ontological paradigm of legal hermeneutics. This part puts forward the theoretical problems arising from the legal hermeneutics in the field of law and Judicature under the paradigm of ontology. The hermeneutics under the paradigm of ontology ignores the authority of the legal text itself, blurs the boundary between legislative and judicial separation and is easy to guide. In the context of subjectivism and relativism, the demand for correctness in the field of legal interpretation does not replace the existence of authority. Therefore, legal hermeneutics should adhere to the standard of judgment in the framework of the meaning of the legal text, and to safeguard the authority of the legislator's intention as a mission of interpretation.
The third part focuses on the discussion of the concept of the intention of the legislator. In the third chapter, the author mainly analyzes the two ways of thinking about the legislative intent, namely, the deconstruction path and the reconstructive path in the current theoretical circle. The author tries to clarify the fundamental problems of the "legislators' intention" in the legal interpretation paradigm through the analysis of the two paths. The path of construction is deconstructed by the nihilism of the legislator and the legislator's intention. The way of thinking with the postmodernism color poses a challenge to the certainty and universality of the rule of law. On the basis of affirming the existence of the legislator, the reconstructive path tries to realize its imagination and try to realize it. However, this path does not put the intention of the legislator in the right position. In view of the problems mentioned in the preceding chapter, the author constructs the concept of "the intention of the legislator" in the fourth chapter, taking the distinction between the legislator and the authority of the legislator as the theoretical basis and the legislator. Intention is seen as the legislator's intention to adjust real social relations to the best possible state.
The fourth part mainly discusses the position of legislative original meaning under the legal interpretation paradigm and the existing problems in the method of legal interpretation. The legislative intention is related to the objective of the legal interpretation, but also related to the method of legal interpretation. In the method of legal interpretation, there are problems of the ambiguity of the interpretation purpose and the means of interpretation. The existence of these problems also damages the authority of the law to some extent. The author thinks that the aim of the legal interpretation should be to pursue the intention of the legislator, and the methodology of legal hermeneutics is to carry out the rule of law around this goal. In order to maintain the authority of law, legal interpretation must be a paradigm of methodology.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D90
本文编号：2140534
[Abstract]:Since the 1960s, the shift of Western philosophical hermeneutics has also brought the paradigm shift from the methodology paradigm to the ontology. The theory of legal interpretation under the ontology paradigm criticized the traditional methodology paradigm and highlighted the subjectivity of the legal interpreter, trying to find the meaning of the legal text in an explanatory perspective. However, this kind of legal interpretation paradigm has its own inevitable defects. It dissolves the dividing line between legislative power and judicial power in theory and practice, generalizes the concept of legal interpretation, blurs the difference between legal interpretation and legal continuation, and thus shaken the foundation of the traditional people's belief in the authority of the legislation. In this context, in this context, the purpose and method of legal interpretation under different paradigms is peered out with the intention of legislators to be seen in order to solve the source of legal authority through the construction of the theory, to clarify the relationship between the judicial power and the legislative power, as well as the different methods and aims of the legal interpretation. This article is mainly carried out from five parts. Discuss:
The first part mainly discusses the historical development of the research paradigm of legal hermeneutics under the influence of philosophical hermeneutics. This part mainly uses the method of literature research to sort out the influence of philosophical hermeneutics on the field of Chinese and western jurisprudence, and summarizes the two basic legal hermeneutics paradigms of the current theoretical circles. These two basic paradigms of thinking and research differences are discussed in detail.
The second part mainly involves critical thinking about the ontological paradigm of legal hermeneutics. This part puts forward the theoretical problems arising from the legal hermeneutics in the field of law and Judicature under the paradigm of ontology. The hermeneutics under the paradigm of ontology ignores the authority of the legal text itself, blurs the boundary between legislative and judicial separation and is easy to guide. In the context of subjectivism and relativism, the demand for correctness in the field of legal interpretation does not replace the existence of authority. Therefore, legal hermeneutics should adhere to the standard of judgment in the framework of the meaning of the legal text, and to safeguard the authority of the legislator's intention as a mission of interpretation.
The third part focuses on the discussion of the concept of the intention of the legislator. In the third chapter, the author mainly analyzes the two ways of thinking about the legislative intent, namely, the deconstruction path and the reconstructive path in the current theoretical circle. The author tries to clarify the fundamental problems of the "legislators' intention" in the legal interpretation paradigm through the analysis of the two paths. The path of construction is deconstructed by the nihilism of the legislator and the legislator's intention. The way of thinking with the postmodernism color poses a challenge to the certainty and universality of the rule of law. On the basis of affirming the existence of the legislator, the reconstructive path tries to realize its imagination and try to realize it. However, this path does not put the intention of the legislator in the right position. In view of the problems mentioned in the preceding chapter, the author constructs the concept of "the intention of the legislator" in the fourth chapter, taking the distinction between the legislator and the authority of the legislator as the theoretical basis and the legislator. Intention is seen as the legislator's intention to adjust real social relations to the best possible state.
The fourth part mainly discusses the position of legislative original meaning under the legal interpretation paradigm and the existing problems in the method of legal interpretation. The legislative intention is related to the objective of the legal interpretation, but also related to the method of legal interpretation. In the method of legal interpretation, there are problems of the ambiguity of the interpretation purpose and the means of interpretation. The existence of these problems also damages the authority of the law to some extent. The author thinks that the aim of the legal interpretation should be to pursue the intention of the legislator, and the methodology of legal hermeneutics is to carry out the rule of law around this goal. In order to maintain the authority of law, legal interpretation must be a paradigm of methodology.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D90
【参考文献】
相关期刊论文 前2条
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2 陈金钊;哲学解释学与法律解释学——《真理与方法》对法学的启示[J];现代法学;2001年01期
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