法律解釋：從方法論向本體論的轉(zhuǎn)變
發(fā)布時間：2018-10-24 12:40
【摘要】：本體論視域下的法律解釋是建立在哲學解釋學的基礎(chǔ)上的,其與實踐的緊密聯(lián)系,更是適應了實踐法學的發(fā)展要求。本體論視域下的法律解釋是一種區(qū)別于方法論的法律解釋,這取決于本體論視域下的法律解釋在實踐生活的熱切呼喚下,緊緊地結(jié)合了本體論風格的解釋觀。方法論的法律解釋是當下理論界有關(guān)法律解釋的主流思維方式,這種思維方式極大的促進了法律解釋的發(fā)展,甚至從一定意義上促進了法治的進步,但是方法論的法律解釋有著其自身難以克服的缺陷,在方法窮盡時很難再拯救焦急的法官。方法論法律解釋將理解、解釋和應用分為三個獨立的領(lǐng)域來研究,本體論法律解釋卻主張這三個方面是相互影響、相互制約的,應該當作統(tǒng)一的整體來研究。本體論視域下的法律解釋具有著本體論(實踐法學的基礎(chǔ)上)所具有的品質(zhì)和性格,從而使本體論法律解釋具有了旺盛的生命活力和適應司法實踐的基礎(chǔ)。可以說,本體論為法律解釋不僅提供了富有生命力的內(nèi)涵,也為法律解釋提供了研究問題所使用的區(qū)別于方法論一種思維方式。這些品質(zhì)和思維方式有機結(jié)合下的法律解釋,形成了獨具特色的本體論法律解釋。所以,本文在研究本體論視域下的法律解釋時,必定不能脫離社會實踐發(fā)展的客觀現(xiàn)實,在法律解釋的過程中必須以實踐的思維方式來關(guān)懷人的生活,也只有這樣,我們的研究才更具有說服力和完整性。 本文在整體結(jié)構(gòu)上,首先,對法律解釋的成因和法律解釋的對象做了概括性描述,主要是從法律解釋的主體“人”的“理解”本質(zhì)、法律規(guī)范的特點以及兩者之間的互動關(guān)系方面進行說明法律為什么需要被解釋；另一方面從法律解釋的內(nèi)容方面進一步探究法律解釋的特點,了解到法律解釋不僅要從法律文本角度出發(fā)來進行研究,更要從案件事實出發(fā)來研究。其次,從方法論視域下法律解釋的特點及缺憾兩個方面剖析方法論法律解釋,得出方法論法律解釋有著其自身的優(yōu)點,但更有自身難以克服的缺陷,所以要對方法論法律解釋的價值進行評估,尋找其它拯救法律解釋的路徑,即方法論法律解釋的本體論轉(zhuǎn)向。最后,本文重點介紹本體論法律解釋的哲學基礎(chǔ)、實踐品格以及法律解釋從方法論向本體論轉(zhuǎn)向的必然性。本體論法律解釋是有著深刻的實踐基礎(chǔ)的,它以辯證的實踐思維為其思維方式,注重培養(yǎng)解釋者的實踐智慧,以實踐理性為其理性基礎(chǔ),以讓人生活的更好為其解釋理念和目的追求。 本體論法律解釋不是對方法論法律解釋的完全否定,而是對其的揚棄,既主張吸收法律解釋方法合理的一面,又清楚的認識到這種單純的技術(shù)化解釋方法給法律解釋帶來的局限并試圖對其進行超越。但是本體論視域下的法律解釋目前僅能能為我們提供一種理論上的指引,在具體的司法過程中還需寄希望于實踐的要求和理論的完善。
[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.
【學位授予單位】：河北經(jīng)貿(mào)大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D90
本文編號：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.
【學位授予單位】：河北經(jīng)貿(mào)大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D90
【參考文獻】
相關(guān)期刊論文 前1條
1 張志銘;法律解釋概念探微[J];法學研究;1998年05期
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