Hermeneutics is the area of study that explains written texts, rooted from Hermes in ancient Greek mythology. Hermes, the god of commerce, god of travellers and messenger of the gods, bears the heavy responsibility of transmitting the oracle to the world, and the reason why hermeneutics takes that as its root is precisely because its original function was to transmit the intention of legislators to the world. To this day, explanation still plays an important role in law.
Generally speaking, when analysing litigation cases, lawyers require first to identify the facts and then apply the law. Explanation runs through the whole process of litigation.
Facts are divided into objective facts and legal facts, which are often inconsistent due to the parties lying, a lack of evidence and other reasons. In judicial philosophy, legal facts should be infinitely close to objective truth. Therefore, how to judge the existence of facts through the explanation thereof is particularly important.
Explanations must be based on evidence review and judgment, and the use of evidence to prove the facts of the case. The standard of proof in criminal proceedings is to exclude reasonable suspicion as evidence. Civil litigation follows a high probability standard as its principle and excludes reasonable suspicion as an exception. In the process of using evidence to explain the facts of a case, the relevant rules of evidence should be followed by all parties.
As a lawyer, in the explanation of the facts, their duty and mission is to use legal knowledge to protect the interests of the client. Therefore, the lawyer’s job from the beginning is to find that most beneficial to their client in a complex maze of objective facts, Then use these facts to explain, organise, and summarise the formation of their own favourable legal relations, and put forward corresponding claims, selecting relevant facts to support their own claims as evidence submitted.
Legal explanation, on the other hand, refers to the understanding and elucidation of legal principles, legal concepts and legal norms contained in formal sources of law.
Legal provisions are for application, something inseparable from legal explanation. In practice, due to the limitations of the law itself, the rapid development of society and the richness of legal language, there exist different degrees of fracture and conflict between law and reality, which cannot be completely consistent. This requires explanation of the law. For lawyers, it is necessary to explore the will of legislators by explaining existing legal provisions, and then apply the existing provisions to cases.
Explanation is a language art, with a variety of forms of expression. The methods of legal explanation can be divided into textual explanation, system explanation, purpose explanation, comparative explanation, natural explanation, historical explanation and so on. In difficult and complex cases, it is normal to use multiple explanation methods comprehensively, and often use such methods to verify each other.
Explanation is an important ability. In order to explain the law well, a lawyer need to have good presentation skills and rigorous, logical-thinking ability. In terms of language expression, lawyers need to pay attention to the organisation of language when explaining the law, and state in strict accordance with the structure involved in advance. In terms of logical ability, lawyers need to be clear and to the point when explaining the law, and the language should be as short and concise as possible.
As Paterson said, “There is no doubt that our age is the age of explanation. From the natural sciences to the social sciences, the humanities to the arts, there is a wealth of data showing that explanation has become the most important research topic of the late 20th century. The importance of the ‘hermeneutic turn’ in law cannot be overestimated”. Lawyers should therefore enhance their skills in factual explanation and legal explanation, and provide better services to clients with stronger professional skills.
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This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable official sources, no guarantee is made with regard to its accuracy and completeness. For more information please visit dandreapartners.com or WeChat: dandreapartners
