Wang Cuixia

(1.Law School Shandong University，Jinan Shandong 250100;2.People’s Procuratorate of Licheng District of Jinan，Jinan Shandong 250100)

Ⅰ.Introduction

The development of philosophical hermeneutics needs practical support from other hermeneutics，particularly criminal hermeneutics.It is believed that philosophical hermeneutics should learn from the research results of legal hermeneutics and criminal philosophy.There are some scholars who hold different opinions.

The initial meaning of interpretation is the repetition of comments，especially the further explanation of scriptures，with the purpose of interpreting the classics correctly.There is no doubt that at the earliest days，hermeneutics was considered as a method，and the interpretation and development of ontology contributes to a better understanding of ontology.Martin Heidegger is the first one to study the ontological hermeneutics from the philosophical perspective and regard interpretation itself as existence theory and ontology.

Gadamer explores a new world of the substantive interpretation by combining ontology practice and languages，the media of interpretation.This turning point is still not obvious in China and at the critical phase of the legal development intertwined with the collision between interest bodies，various theories have been trying to take the lead.We should focus on the fundamental research.

The research on criminal hermeneutics in China，which is dependent on the research achievements of legal interpretation，is still at the stage of the construction of the theoretical framework.The research on criminal hermeneutics should make full use of legal interpretation and apply it in the theoretical framework.Basic research has significant theoretical and practical meaning on the further development of China’s rule of law，and the standpoint and basic routes of interpretation have become an important research area.

As far as the standpoint of the interpretation of the criminal law is concerned，there is a debate between the modal interpretation and the substantive interpretation.In brief，the former focuses on the modal logical thinking and legal formalism，and the latter tends to judge crime and punishment from the nature and purpose of crimes and criminal law.

Practical route，as one of the fundamental methodology routes of the interpretation of criminal laws，has not only grasped the vivid social life and practice，but more importantly，pursued the social practice of humans，which is the most authentic judgment of value and fact.It ignores the complexity of various social phenomena and explores the original meaning of legal provisions and social fact，thus yielding an interpretation of criminal law which is the closest to the truth.Understanding is rooted in the practice;the practical characteristics of the substantive interpretation of the criminal law are rooted in the philosophical depth of the criminal law，which ponders over the problem of life and freedom in a deeper sense.

Ⅱ.The interpretation of the criminal law based on practice

The real world we live in and the social practice and cognition actuality realistic problems that cannot be ignored in the course of the interpretation of the criminal law.Humans，in the sense of existence theory and ontology，are always in pursuit of the true self and all other truth.

The modal interpretation of the criminal law may be caught in the plight of practice.It strives to slip the leash of practice and seek after the reality of social practice which is predominated by modal ration or rejects change.It confines itself in the legal provisions，which leads the judges and other legal workers to ignore the world reality，and in the meantime，results in the overlook of the lofty responsibility of legal system’s improvement and being fair and justice.However，humans feel pride that they tend to be reluctant to recognize anything that have not been proved right in their mind.The substantive interpretation of the criminal law holds that practice cannot be ignored and should be faced directly.Besides，all problems should be clarified on the basis of practice，and the real state of interpretation will present itself in front of us.Firstly，the state of openness should be on the level of facts，which is also the factor that can provoke the curiosity of rational people.We need to organize and judge all the facts that come into our sight，and then come to understand the specific situation，people involved，the incident and the outcome，etc.

Second，legal workers’mind begins to function.Confined by the knowledge system and practical experience of ourselves，we will mobilize all our knowledge reserve to make prompt initial decision of the fact on the legal basis，which may be only one of the decisions，or even be wrong.

What’s more，the nature of the interpretation lies in the comprehensive judgment of value and fact and the pursuit of a certain linking point between legal provisions and the real case，which tends to bring about problems.We need to constantly take into consideration of facts and norms to screen and exclude wrong ideas so as to find the best linking point.As the interpreter of the existence theory and ontology，we need to dig out the original meaning of the object from the depth of the essence，and then make final decisions.

Martin Heidegger studies hermeneutics from the perspective of ontology，and he notes that understanding texts is the same as making plans.Interpreters presuppose certain original meaning of objects.“Firstly，they presuppose a certain plan，which will surely be altered constantly by new senses，and that is the understanding of the object.”The constant alteration aims at seeking the integrating point between texts and facts，which can be manifested in many legal cases.

Ⅲ.Preference to literal rule with other interpretation as supplement

The substantive interpretation of the criminal law is，by nature，to seek substantiality of interpretation and make interpretation in the real sense.It not only carefully studies the“l(fā)anguage”of legal provisions，but explores the origin and real meaning of words in a deeper sense，rather than being confined by the so-called“public”or“mainstream”opinions.The substantive interpretation of the criminal law will always takes into consideration of the development of social practice when the cases occur and seek the true connotation of legal regulations.

There is no doubt to ensure the preference to literal rule.Literal meaning is the bridge of interpretation，and that’s why it is called the“golden rule”of legal interpretation.The practical route of the substantive interpretation of the criminal law，covering many methodologies，prefers the dominate role of literal interpretation and attaches great importance to the change and modern interpretation function of meaning.Every interpretation has its advantages and disadvantages.However，the substantive interpretation of the criminal law is not a hodgepodge，but has a supporting point helping it to maintain independence，which is the substantiality sought by basic justice.There is certain range in the substantive interpretation of the criminal law and any arbitrary interpretation will be ruled out.

Language is the bridge of interpretation which is updated.The interpretation of literal meaning is the most basic method to achieve the substantive interpretation.The criminal law，with its unique feature involving human freedom and living rights，requires prudence and carefulness of interpreters.However，interpreters have their own missions which demand their exploration of the essential meaning of words.

In specific cases，the literal content of legal provisions firstly comes into our mind after we make initial judgments.Interpreters will inevitably enrich the literal meaning of the literal rule by their own knowledge reserve.Their mind travels between case and literal rules and then the most suitable decision will be made with proper reasons.It needs our emphasis that the predominance of the interpretation of literal rules is based on the practicality of the substantive interpretation of the criminal law.

In the interpretation of the criminal law，one should not take the mechanic interpretation as one’s excuse so as to avoid further exploration，or take advantage of the imperfect law to evade one’s responsibility.

Ⅳ.Pursuit of substance and subsumtion of balancing of interest and value judgment

On the basis of literal rules，we will take into consideration of social reality.There is no such thing as a totally independent trail of the judge or law interpreter.It is impossible for him not to be affected by social reality.The balancing of interest and value judgment occupies an important position in the interpretation of the criminal law.

Laws，as a basic tool to govern society，require professional interpretation，particularly in the realm of the interpretation of the criminal law which declares one’s guilty and sentencing.Both the modal interpretation and substantive interpretation of the criminal law are in active pursuit of the pure science of law.This paper also argues that criminal hermeneutics always possesses the character of pure science of law，which is why it is capable of maintaining the leading role of law.

The balancing of interest refers not only to the legal interest，but paying attention to measure the reality and the following interpretation as well as the related social interest in the interpretation of the criminal law.Besides，the balancing of interest should be made on the level of the Constitution.

When it comes to the value judgment，this paper adopts the opinion of the“new rhetorical of law”，maintaining that legal logic is“not a modal logical method，but diversified value judgment methods…the logical judgment of value is indeed much more reasonable than the simple logical judgment of form.”However，there is no doubt that value judgment of laws should be included in the value judgment.

Therefore，there is something in common between the balancing of interest and value judgment.We should pay attention to the balancing of interest in the social historical practice instead of making judgment by certain fixed form.Hence，the modal logic shows its limitedness while the substantive interpretation manifests its supreme standpoint.However，we should keep it mind to avoid the supreme trap and that supremacy by no means equals to randomness or casual interpretation.Particularly in China，with the legal heritage of the Mainland，interpreters，especially judges，should be more careful to execute the interpretation right，even though in the limit of discretion.

Ⅴ.Conclusion

This paper explores the practicability of the substantive interpretation of the criminal law.However，the basic route of substantive interpretation of the criminal law，as an interpretation standpoint，deserves our study，for instance，due procedure.We have just come up with a research approach and the study on criminal hermeneutics cannot rule out the research results of philosophical hermeneutics.Therefore，we should focus on the interpretation of hermeneutics theory in this regard in the discussion of criminal hermeneutics and try to seek support from the perspective of philosophy，which is our research approach of the basic route of substantive interpretation of the criminal law.It is justifiable to say that a research approach of the substantive interpretation of the criminal law has been put f orward on the basis of ontology.

Notes:

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