Renmin Chinese Law Review
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Renmin Chinese Law Review

Selected Papers of The Jurist (法学家), Volume 5

Edited by Jichun Shi

Renmin Chinese Law Review, Volume 5 is the fifth work in a series of annual volumes on contemporary Chinese law which bring together the work of recognized scholars from China, offering a window on current legal research in China.
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Chapter 2: Legal methods, legal certainty and the rule of law

Selected Papers of The Jurist (法学家), Volume 5

Lei Lei

Abstract

One of the main challenges to legal methods is that it will destroy legal certainty, which constitutes the core of the rule of law. Judicial decisions are, above all, “decisions according to law”, and legal certainty in this respect is concerned with the “range of normatively possible application”. Although this range of application in legal interpretation and in the case of continued legal making are both indeterminate, yet, on one side, the wording of legal rules, the discourse regulated by rational procedural rules, legal argumentation through stare decisis and dogmatics, adherence to special interpretative means of law and their rank, and compliance with demand from constitutional order all greatly reduce the discretionary space of judges; while on the other side, in the process of continuous legal making, legal certainty must be considered in balance, and it also plays a role in the burden of argumentation and the rule of collision, which in turn largely offsets the loss of certainty caused by overcoming the wording of legal texts. There exists the possibility for legal methods to satisfy the “maximum certainty in law”, and thus there is also the possibility to achieve the rule of law. The theory of legal methods cannot be separated from the value theory behind it in the process of transplantation from abroad. Keywords: legal methods; decision according to law; legal interpretation; legal certainty; rule of law

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