Legal: Interpretation and Application

Author: Xie Hui
Publisher:
Publish Date: 2002-03-01
Features: If the legal rule theory of H.L.A. Hart himself demonstrates his legal interpretation concept in a macro sense, then it alsos that this serves as a foundation for developing his legal interpretation theory at a more specific and operational level. H.L.A. Hart's legal interpretation theory is closely linked to a concept he proposed, namely the "empty structure" (or sometimes translated as "open structure") of law. He introduced this concept in the context of relevant theoretical and academic critiques. Is there certainty in law? What is the degree of its certainty? We know that this has been a contentious issue in the history of legal scholarship. The legal formalists criticized by Hart, who possessed a romantic spirit, believed that legal norms possess their affirmative, unchanging, and certain content. "Law is a comprehensive and complete system of rules, where each rule is a general proposition. By applying logical deduction, it can be applied to individual cases to arrive at the correct judgment." In a certain sense, the "Pandects" jurisprudence represented by Windischmann (so-called conceptual jurisprudence) was of this kind. However, such ideas were not confined to Continental Europe. Even within the English legal tradition, there was the famous "common law declaration theory." Under the formalist view, judges and courts rarely, if ever, faced the issue of legal interpretation; their task was at most to declare existing rules (law) through judgments. Therefore, seeking and applying existing law was the fundamental mission of courts. For courts and judges, creating law through interpretation was superfluous. Hart opposed this absolutist and extreme view of legal certainty, arguing that its essence was an attempt to "solidify the meaning of rules" and establish a fixed "conceptual realm" for legal scholars.
The other main stance on the issue of legal certainty is the denial of legal certainty, which Hart termed "rule skepticism." In the history of jurisprudence, there have been many rule skeptics, but it was the American legal realists and their successors—pragmatic jurisprudence and critical jurisprudence—that pushed the tradition of rule skepticism to its zenith. Regarding the former, Karl N. Llewellyn (1893–1962), who did not advocate defining law, reluctantly defined it as: "What judges do in controversies is, in my view, the law itself." Frank (Jerome Frank, 1889–1957) went even further than Llewellyn. He believed: "It is impossible to give a complete definition of law, and even a working definition would exhaust the reader's patience." Nevertheless, he affirmed the existence of the question "What is law?" and cautiously answered it: "In specific circumstances, law is (1) actual law, such as specific judgments on certain situations; (2) possible law, i.e., speculation about future judgments." "When people ask a lawyer what law is, it is certain that their purpose is not to find out what the court has previously decided but to find out what the court will decide in the future." And by the time it came to Robert