从同一性到相似性:法律解释的结构转向与体系重构

From Identity to Similarity:Structural Shift and System Reconstruction of Legal Interpretation

我国当前的法律解释论以封闭概念体系和体系型法典的构建为基础,以绝对性、封闭性规范为目标,将法律适用过程视为以同一性为基础的涵摄过程,将解释限制为服务于同一性过程的具体化手段,而将类推作为漏洞填补的方法。但是以同一性为基础的类推与解释分离结构不仅无法解决解释的具体化程度问题,也限制和约束了类推功能。当作为同一性前提的概念封闭被消解之后,法律解释和类推之间的界限不再存在,类推解释成为法律解释的根本方法,法律解释的目标是以相似性为基础的开放性概念和相对性规范。以相似性为基础的类推解释体系不仅是必要的,也能获得理性化证立。

The current legal interpretive theory in our country is based on the construction of a closed conceptual system and a systematic code,with absolute and closed norms as its goals.It views the process of legal application as an inclusive process based on identity,restricts interpretation as a concrete means of serving the process of identity,and regards analogies as a method of flling loopholes.However,the separation structure of analogy and interpretation based on identity not only fails to solve the problem of the degree of concretization of interpretation,but also limits and constrains the function of analogy.After the concept closure as a prerequisite for identity is dissolved,the boundary between legal interpretation and analogy no longer exists,and analogy interpretation becomes the fundamental method of legal interpretation.The goal of legal interpretation is to establish open concepts and relative norms based on similarity.An analogical interpretation system based on similarity is not only necessary,but can also obtain rational evidence.