| Legislators normally adopt general legal terms to convey behavioral standards for social individuals and judicial standards for judges at the same time. In order to apply these rules expressed in general terms, people involved need to determine whether the particular object they encounter could be counted as an instance of the relative general terms or not. Although in many cases this kind of determination is easy, it could become and often do become a difficult problem and legal interpretation may show up as a reliable method to solve this problem. Because of this, an important task of legal interpretation is to determine the referent of general legal terms within legal rules, which leads to the expectation of the role of general philosophical theories in guiding the endeavor of the interpretation of legal rules. However, this expectation is not fulfilled since there is no consensus on how to determine the referent of a word in the philosophy of language, and none of the three primary referential theories (description theory, direct reference theory, and intentionality theory) can be applied in the domain of law without dramatic alteration, which can be attributed to their own shortcomings or the distinctive feature of legal practice as a kind of communication activity. The referent of a general legal term is determined neither by public descriptions as the description theory may suggest, nor by the essential attributes of things that some authors influenced by the direct reference theory have suggested, or solely by speaker's intention as some intentionalists have suggested. The referent of a general legal term is jointly determined by legislative intent, objective knowledge, and linguistic habitus. These determinants have different roles to play in the process of referent-determination, that is, legislative intent provides the criterion, objective knowledge defines the scope, and linguistic habitus excludes unfit conclusions. |
京公网安备11010102006664号 京ICP备2023015853号