The Certainty Of Legal Reasoning And Uncertainty

This dissertation aims at studying ideas of determinacy of legal reasoning. The author thinks that absolute determinacy of legal reasoning supported by conceptionism in law is an ideal of rule of law. But he concedes there are many undermined factor, which are rooted in historical structure and cannot be overcome. It caused contradictory between the ideal and reality. And he attempts to use "relative determinacy" which can conclude the ideal and the reality. In order to operate in judicial procedure, the author annotates "relative determinacy" with "reasonableness on communication": if a dictum is an outcome by a lawful procedure, it is a reasonable and persuasive dictum, which can be corrected by a lawful procedure.The dissertation is composed of three chapters.Chapter I studies the absolute determinacy of legal reasoning by conceptions in law. It begins with the conception of legal reasoning, and then examines the history of theory about modern legal reasoning. But its focus is on the manifestation of determinacy by conceptionism. It concludes three aspects, which are the certainty of rule, fact-finding and syllogism.Chapter II probes the uncertainty of legal reasoning. The author lists main factor of uncertainty, ex, gap, open-texture in law, diversity in value, relativity in causation, etc. He also examines some basic theory of uncertainty by hermencutics.Chapter III elucidates meaning of relative determinacy of legal reasoning and how to obtain this determinacy. The author thinks that mental tendency of person and consensus of colony are basis on which the determinacy can be gotten; just, overt and free procedure guarantees the probability of the determinacy; and according to with positive law assure it lawful.