The Theory Of Legal Argumentation In The View Of Interest Balance

The theory of legal argumentation has many achievements in domestic research, theresearch related to the formal logic, rhetoric, discourse etc. However, there is no scholarsapply the interests balance fully to legal argumentation. The existing theory is only to studyfrom the point of pure interests balance between the theory of legal argumentation andexisting theory lack of a feasible communication channel. This paper attempts to find thelinking spot by reviewing and analysing legal argumentation and the theory of interestbalance.The first part examines the legal argumentation from the theoretical level First of all,argumentation theory has profound philosophical and legal background in philosophy, legalargumentation originates from the rational regression. In the law aspect, it originated from thefusion of the main western legal thought Secondly, highlight the important status of theformal logic in legal argumentation Although the form of logic have been widely criticized，However, due to the regression rationalism in philosophy Make the legal rationalismrepresented by logic have a greet role in legal argumentation Once again commented on thediscourse theory of law and legal argumentation.The second part focuses on the theory of balancing of interests. Firstly, reviews andanalyzes the theory origin of interests balance, Reviewed the history of law from the purposeof law to the society of law. Evaluation law creation originates from the Criticism of Legalconcept of mechanical. The Concept of law is wedded to the inherent legal provisions,massively divorced from reality. Has produced many legal theory in the criticism of theconcept of law, this contains the jurisprudence of interests of Law--the predecessor society.It attempts to apply the concept of pragmatism to redefine the law, the social control as thepurpose of the law arising, then through the allocation of various social benefits to achieve thesocial adjustments. Secondly, analyzes the necessity of interests balance for legalargumentation. Legal argumentation has subjectivity, which led to the conclusion of thediversity of the judgment, This provides the necessary precondition for the emergence ofinterests balance. Conflicts of interest can not be reconciled, due to the variety of species ofinterest, evaluation standard of diversity has the variety, a conflict of interest is difficult to reconcile, this can only be a way to make up for the interests balance. At the same time, aloophole in the law makes the law difficult to cover all aspects of society, it also provides thepossibility to the existing of the interests balance.The third part carries on reconsidering to the interests of the measure theory of legalargumentation. Interest balance have a great significance in legal argumentation, it helpsmake up for the deficiency of traditional formal logic, making the legal argument closer to thereal life. However, the defect of interests balance is obvious, a simple interests balance easilylead to neglect articles of law, conniving arbitrariness of judge, and due to the lack of objectiveevaluation criteria so that the interests balance facing difficulties.In this paper the practical significance of the thesis:(1) To broaden horizons of legalargumentation, in order to make legal argumentation better effect on the practice.(2) toovercome the shortcomings of traditional concepts of law, by increasing the discretion of thejudge and then make the law more suitable legal cases resolved.This paper focuses on the theoretical background of legal argumentation and interestsbalance, and through the analysis of specific cases to analyze the shortcomings of traditionalformal logic, leads to the necessity of application of interests balance. Study on the necessityof the legal argumentation and interest balance, in order to increase the suitability of them.