The Research On Topic And The Topical Thinking Mode In Law

Chapter One deals with the content of the topic thinking mode and its renaissance in law. The topic thinking mode developed after realizing the defects of thinking based on the system. According to the later thinking mode, the legal system has make proper orders for all concepts and rules within it, what we have to do in applying law is to find laws related and make reference from it. There are premises implied in the thinking mode based on the system:first, the legal system has covered all the problems in the field without missing anything. Second, there is no conflicts within legal systems, every problem has a single corresponding rule, it is no need for us to resort to social purposes and legal consequences as deciding factors. There are inevitable loopholes in legal system which we should by methods such as analogy inference to solve the problems that the law has not stipulated directly. The conflicts of legal norms can be resolved by interpretation and dialectic inference which are inevitably related to topics. In a word,the imperfectness of legal system leads to the use of topics.The Germany jurist Theodor Viehwegwrote the book named "Topics and Law" in1953, he promoted topic as a mode of thinking for the first time. Topic is an art of thinking which takes its orientation from a problem. Then, what makes a problem? When there are plural probable answers for a question, a problem arises. Topics makes their function in helping us make suitable choices in dilemma situation. For the choices we are in confront of are probable, it is hard for us to find absolutely true axioms as foundation, so we should makes views which are generally accepted as the starting points of argumentation, then, topics are involved in the thinking process.However, the topic thinking mode does not absolutely reject learning thought system, no matter thinking from which angle, we all need meaning association to take orientation of problems, when these meaning association arranged as certain order, legal system arises. Even the topic thinking mode cannot get out of the systems. After make the relationships between the topic thinking mode and the thinking based on system, we are in confront of the problem on how to integrate the two thinking mode, the jurists have make great effects on argument in open systems and make turn from concept to type.Chapter Two expounds the topical tradition in western countries. Aristotle raised topics as opinions accepted by the public or the wise which could be taken as premise of dialectical inference. Cicero considered topic as the position where we could find argumentation that would tell us from which directions argumentation came, cause and effect, analogy, definition along with positive and negative are all relationships which can tell the directions of argumentation, so they are common topics in our life. In the Middle Ages, topics went down through canonist dialectics. Since the modern times, with the development of the thoughts of scientism, as probability reasoning method, topic gradually declined. In the twentieth Century, along with the revival of rhetoric theory, the topic also aroused people's attention. Topics worked through two modes in Perelman's new rhetoric theory, on one hand, as commonly accepted value propositions, topics make starting points in reasoning, on the other hand, Perelman refined a series of argument schemes on the base of topics, as the logic tools of argumentation and conviction. Informal logicians such as Kienpointner and Walton expressed the common topics in the logic form from daily dialectical practice, then matched them with the corresponding critical questions,which formed the systemic theory of argument schemes.Chapter Three explains legal interpretation the perspective of topic. In the ontology of hermeneutics, we understand on the basis of pre-understanding, which signs significance to object and guides out the respect from which we will understand, essentially has the topic of the property. Each legal interpretation methods, for example, the context requires, history and system, suggests a explain perspective, corresponding to a type of argument, which we can open rational argument to justify his explanation viewpoint. From this perspective, explain method also has the function of the topic. It is the topic plays a role in communication between pre-understanding and the explanation methods, the pre-understanding is not clear at the start, we constantly make adjustment according to fact and former understanding back and forth, eventually it forms the certain understanding, and through the interpretation method to make it legitimate.Chapter Four expounds the functions of topics in legal argumentation. Comparing with inference, argumentation aims at make conclusions accepted with proper reasons which sound reasonable to the problem involved, so it always carried out around particular problems that reflects the characteristic of the topic thinking mode. Overall, the function of topics in legal argumentation is reflected in two aspects, first, the topic makes important methods in constructing legal argumentation, it provides major premise and argumentation schemes and the frame of dialogue and debate. In the reconstruction of the legal argumentation, for the external justification deals with the legitimacy of major premises that inevitably involves rational judgement which makes its uncertainty, so it is impossible to restate by syllogism. The argumentation based on topics is a presumable method which stands probably to be but not necessary that meets the demands above, so it makes effective means to reconstruct external justification.Chapter Five explains the topical character of the case law. The case law system developed along with the judicial activity, which has strong characteristic of individual decision, so it typically represents properties of the topic thinking mode. The case law embodies in opinions of judges that sound reasonable in most cases but not necessarily so, whether a precedent would be applied depends on checks in particular cases, these probable opinions lie in precedents have the character of topics. In lack of uniform component theory, what elements can make two cases essential similar is sill uncertain, it is inevitable for them to make argumentations from different angles and levels, thus, dialectic becomes an important tradition of the case law system.Making a deep analysis, it is tightly related to probable character of the case law system which has left rich space for legal argumentation.What means "stare decisis" is full of controversy in case law system which has no definitive answer for long time. Sometimes, it means to follow the rules supplied in precedents, while, the precedents only provide approaches for inference and argumentation at other times,then it still has two functions above in some cases. If we take precedents as topics, when topics are generally accepted opinions, they can function as major premises for inference which were taken as rules in legal cases, when topics are argument schemes, they can provide analysis approaches for us. In a word,considering the working of precedents from the perspective of topics can expound the complete meaning of the "stare decisis" principle.Chapter Six explains how topics and systems functioned in the evolution of law alternatively while taking continental European legal history as a clue. In ancient Greece, affected by the speculative tradition, people are keen on issues such as what makes justice, lacking of professional consideration on law. Along with flouring of rhetoric, the Sophists made confusions on purpose by using sophisticated skills. Under this circumstance, the result of a lawsuit was not based on law, but depended on whether one could manipulate the emotion of audiences. In order to convert such situation, Aristotle developed his topic theory that had rigorous contents, so that the argumentation basing on it would getadequate rational connotation. Unfortunately, this theory did not have enough effect on rhetoric practice including judicial speech. The judicial practice in Rome has deep characteristic of individual case decision which embodied the topical thinking mode fully. While this did not mean that topical methods were used amply in that period, for the Rome law was in lack of unified concepts and clear rules which led to flexible judicial art. Cicero tried to developed topics such as definition and analogy to regulate legal method and improve its logical content, but his topic theory was also not gained due attention.During the middle ages, the European jurists used the scholastic dialectics especially topical methods to make systematic arrangement and form unified legal concept from the legal confusion in the Renaissance of Rome law, It is the standardized and systematic treatment of legal material done by the medieval jurists that lay a solid foundation for later legal system construction. Since the modern times, influence by rational thoughts, jurists started to use scientific methods to deal with legal material, especially using mathematical method to construct the legal system. The jurist in this period extracted a few primary principles, then made deduction step by step to derive corresponding legal rules, the German civil code makes the extreme of the systemized way. In fact, no matter how rigorous and profound a law system is, it is difficult to apply it directly without explanation, and once legal interpretation is involved, the purpose of lawmakers, the meaning of the legal concept, legal consequences will be considered factors for us, the purpose, definition and causal topics are then added, while the interests system and value system were developed in the background of extreme deducing system in order to seek "open" thinking.Chapter Seven expounds the application of topic in the departments of law, for the topical thinking mode take consideration revolving round certain problems, what relating to the problem all may be taken into consideration, so it is hard to avoid dispersed in such thinking, which inevitably in confronts of legal regulatory impact. The type method and dynamic system theory are just developed tocan solve suchcontradiction, in the understanding of the legal concept, the type method focuses on the overall intuitive normative appraisal, which can open to related factors, preventing unscrupulous consideration. The dynamic systems theory breaks the traditional elements method, determing factors that should be take into consideration in certain type of legal issues, each factor embodies corresponding evaluation principle, these factors are complementary and alternative with each other, we should make balance between them when we are in confront of certain legal issue,the key still depends on the overall evaluation.This theory attempts to construct the coordinated control system which covers principles and evaluation standards, then,it will have to return to the system to some degree, but the system is not complete deduction system, but the type system and value system, which limited to rare hierarchy flexible system, overall still belongs to the problem centered topical thinking.