论诠释学视域下的类推理论——兼论考夫曼的《类推与事物本质》

On the Theory of Analogy in the View of Hermeneutics

传统上类推仅仅被看作是法律适用的补充性技术,而考夫曼在诠释学的观照下主张所有的法律适用都是类推的过程。天下没有两个完全相同的案件,法律适用就是规范与事实不断逼近的过程,由此只有在规范与事实的对应中才会产生真实的法。类推的过程可以从考察规范与事实的共有意义、回归立法目的和判断相似性等方式来操作,从而实现类推从本体论到方法论的转换。

Analogy is looked as the supplement law applying technique traditionally. But Arthur Kaufmann holds that every law applying is the process of analogy in the view of Hermeneutics. There have no two cases that are same in each aspect. The law applying process is to pull the rule and the fact closer gradually. The real law is produced in the correspondence of the rule and the fact. The analogy process could be done by inspecting the same meaning of the rule and the fact, returning to the goal of the legislation, and judging the similarity. By doing that, the analogy could be transformed from ontology to methodology.