Weighing and balancing of principles in cases with rule paradoxes
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Xinli Zhu
Abstract
Cases with rule paradox are common in Chinese legal practice. The result of the reasoning process in cases with rule paradox is usually exclusion of the application of the seemingly applicable rules and creation of exceptions to the original rules. Therefore, interpreters have a higher standard to meet in their reasoning. The traditional method of “teleological restriction” is susceptible to the criticism of insufficient reasoning, but the method of principle weighing and balancing can enhance the persuasiveness of the reasoning process. According to the law of competing principles proposed of Alexy, rules are produced after principle weighing and balancing. If we reverse Alexy’s law, any rule can be reduced to principle weighing and balancing. This reversal provides theoretical basis for our method of handling cases with rule paradox, which allows interpreters using sociosemiotic approach to rediscover the missing principles and factual elements in individual cases and to reopen the process of principle weighing and balancing before they make decision.
Funding statement: This study is funded by Collaborative Innovation Center of Judicial Civilization, China.
Acknowledgments
We thank the Chinese National Planning Office of Philosophy and Social Science, the Guangdong Planning Office of Philosophy and Social Science and the Guangzhou Planning Office of Philosophy and Social Science for their generous funding. This article is a product of a research program (the program known as12BFX041 for the National Planning Office of Philosophy and Social Science, as GD11CFX06 for the Guangdong Planning Office of Philosophy and Social Science, and as 11y06 for the Guangzhou Planning Office of Philosophy and Social Science) co-funded by them.
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Articles in the same Issue
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Articles in the same Issue
- Frontmatter
- La sémiotique juridique verbale et nonverbale comme stratégie de communication du droit: Signs, symbols, and meanings in law
- “Verbal and nonverbal” in semiotics
- The frowning balance: Semiotic insinuations on the visual rhetoric of justice
- Semiotics of visual evidence in law
- Observing laws through “understanding eyes”
- Interpreting law in socio-pragmatic space
- Conceptualizing cultural discrepancies in legal translation: A case-based study
- The first integrated practice of legal translation in modern China: A study of the Chinese translation of Elements of International Law, 1864
- Translations of early Sino-British treaties and the masked western legal concepts
- “Susanna and the Elders”: On the visual semiotic of shame
- Angels, warriors, and beacons: Totemic law, territorial coding, and monumental sculpture in post-industrial landscapes
- Expiration dates: Performative illusions of law and regulation
- From immunity to immunity. From immunity to silence: The case of Gilad Sharon
- Under western eyes: Articulation between indigenous justice and the national judicial system
- Police interpreting: The facts sheet
- The influence of legal tradition on Italian arbitration discourse
- Weighing and balancing of principles in cases with rule paradoxes
- “You have to teach the judge what to do”: Semiotic gaps between unrepresented litigants and the common law
- The semiotic interpretation of legal subjects in China’s new criminal procedure law
- Mission impossible? Judges’ playing of dual roles as adjudicator and mediator in Chinese court conciliation
- “Is it the case that … ?”: Building toward findings of fact in Japanese criminal trials
- Institutional interaction in traffic law enforcement in China: Resistance and obedience
- Duppying yoots in a dog eat dog world, kmt: Determining the senses of slang terms for the Courts
- Les structures sémantiques profondes du code pénal chinois
