Research On Legal Reasoning In Hard Cases

Hard case perplexes China’s judiciary recently. The theoretical circle gave hard case more attention about theory of hard cases, such as the concept, extension and so on, but most is not in the present of judicial. Some scholars with a positive attitude, response to the problems in the judicial practice. In this paper, the research is in the present of judicial,focus on hard cases in judicial practice. This article discusses what is hard case, and believe hard case comes from the size of the premise of "uncertainty", discusses the referee methods of hard cases and the particularities of law reasoning, and believe hard case not only include the hard cases of applicable law, and also include hard case of fact-finding.Legal reasoning as one of hard case methods can not only clarify hard case referee minor premise, and can get hard cases the referee’s major premise. The function of legal reasoning is not just "deduce", but also "choice". Based on the traditional classification of law reasoning — formal reasoning and substantive reasoning— as a basic article layout consideration. Specifically expounds the deductive reasoning, analogy reasoning, inductive reasoning, such as reasoning form and substance reasoning how to eliminate " uncertainty" in difficult cases. The first chapter defines the concept of hard case, "hard case" in Chinese and in foreign language emphasizes the existing of the controversial results or a case with a different conclusion. Investigates the basic position of the western scholars about hard case,and expresses the basic view of this point. The second chapter presents the judging methods of hard cases, discusses the reasons for selecting legal reasoning to study in this paper. Give a deep analysis of the connotation of legal reasoning, believe legal reasoning not only has formal rationality but also has practical reason, is helpful for achieve justice. The third chapter discusses the form reasoning in hard case. Judicial syllogism powerless in hard cases, but anti-judicial syllogism reasoning, especially modus tollens, disjunctive reasoning play an important role of sorting out problems in fact-finding. Two types of analogical reasoning in making up for the loopholes and blanks of the law play an important role,make such hard cases largely solved. Inductive reasoning is the necessary means of analogical reasoning, can also do something in facts-finding. The fourth chapter discusses substantive reasoning in hard case. Hard case promote substantive reasoning has been seriously, and substantial reasoning is only used to verdict hard case. In the form of practice examines the substantive reasoning. The fifth chapter discusses some conditions for legalreasoning function effectively.