從語言的模糊性到法律的不確定性.pdf

1、 Abstract Indeterminacy of law has become a legal issue in legal theory since it was proposed by American legal realists. Different schools have different views on whether law is determinate or indeterminate. Some jurist

2、s say law is determinate and all of the legal issues have the single answer, or the single correct answer. However, the Critical Legal Studies (Liao Meizhen, 2007:4) in U. S. holds that laws are completely indeterminate,

3、 for legal material itself often cannot — in other words, rarely or never — determine the outcome of legal disputes. The theorists of the Critical Legal Studies think that indeterminacy of law is based on the nature of l

4、anguage or the operation-style of language in legal reasoning. But is law determinate or indeterminate on earth? Holmes, Hart and Dworkin explore indeterminacy of law from different angles, which are philosophical approa

5、ch, semantic approach and epistemic approach respectively. According to the classifications made by Professor Guo Hongyi and Professor Shen Minrong, the present thesis will discuss indeterminacy of law from indeterminacy

6、 of legal sources, concepts, rules, reasoning and legal interpretation, all of which can be categorized into indeterminacy in legislation and indeterminacy in judicial process. The causes of indeterminacy in legislation

7、can be summarized into philosophical, cognitive and linguistic factors. According to Timothy Endicott (2000: 31), the sources of linguistic indeterminacy include vagueness, imprecision, incompleteness, contestability, f

8、amily resemblances, pragmatic vagueness, ambiguity, etc. Vagueness is one kind of linguistic indeterminacy that causes indeterminacy in legislation. Therefore, through analyzing some forms of vagueness — approximators, g