Open Texture, Legal Interpretation and Analogical Reasoning:Some Reflections on "Decision-making According to Law"

• Main Authors: LI, AI-LIEN, 黎愛蓮
• Other Authors: Jhuang, Shih-Tong
• Format: Others
• Language: zh-TW
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/11122220627241984060

碩士 === 國立臺北大學 === 法學系 === 95 === Base on the theory of the open texture of language, Hart argued that legal rules need interpretation in the penumbra of the term’s meaning(for the purpose of the rule). The open texture of legal rules allows rules to be interpreted reasonably when they are applied to situations and types of problems that their legislators did not or could not have foreseen. So in such legally unprovided-for or unregulated cases the judge both makes new law and applies the established law. In making a decision whether the present case resembles the plain case sufficiently in “relevant” “respects”, which is an analogical reasoning.