Abstract

Lawyers divergence on legal interpretation in hard cases is, more than often, merely a fa?ade. The underlying cause of such divergence is largely their disagreement on the notions and methods regarding how to approach the formality and functionality of the law. Indeed, the formality of law, especially legal concepts and their structural arrangements in legal texts, plays an essential role in the establishment and expression of the rules of law. Nonetheless, when it comes to hard legal issues, formal legal reasoning may not only suffer from self-contradiction, but also fail to fulfill due institutional functions. Worse, many lawyers in China， especially jurists and judges， have long been indulged in formalism when interpreting the law. This article argues that judges, when encountering competing sets of formal arguments， should shift their eyesight from the formal dimension of the law to its functional dimension, and access the social impacts each explanatory option is likely to bring about. The option that works better to promote social welfares should be chosen as an answer to the issue. Functional analysis of law is a matter of contextual inquiry, which means analysts ought to accurately calculate all major variables in given contexts, no matter economic, political or ethical. The highly contested issue of punitive damages for intentional purchasers of defective products serves as an illustrative case throughout this article.

Keywords: Hard Cases; Formalism; Functionalism; Intentional Purchasing of Defective Products; Punitive Damages

From: Peking University Law Journal 2017(2)

Editor: Liu Xiaoling