Study Of Legal Argumentation Theory

In the past decades, the theory of legal argumentation has been developed and presented as an important field of study in both European and American acacemic circles, which has also been the most important research findings in today's study of legal methodology. Such research includes a lot of topics, but the paper aims at study of problems in legal argumentation in judicial process, especially some issues in basic theory of legal argumentation, from perspective of judicial process.Various philosophical theories have been used in different theories of legal argumentation. As a whole, ancient Greece thoughts have been followed by the theory of legal argumentation to deal with difficulties in study of legal methodology, and the philosophy of language, rhetoric, and hermeneutics, etc. in twenty-century have also been used by argumentation theory.In history of legal theory, the theory of legal argumentation is developed under megatrends in contemporary jurisprudential research on concept of law, which the previous conception of law with coercive forces has been gradually replaced, with the rise of conception of acceptable rule at the same time.The general theory of argumentation Neumann is referring to is the German variant of what is known as 'informal logic'or 'practical reasoning' in England and the United States or as 'nouvelle rhetorique' in France and Belgium. So the research of legal argumentation consists of a lot of approaches that derive from different backrounds.In the history of continental legal theory, the scientific methodology with subsumtion model sees argumentation theory 'unneccessary', while the decisionism sees it 'impossible'. In fact, contemporary legal methodology can be understand as incorporation rational debate into the traditional model, and thus is the argumentation model of legal decision.The application of law should be understand as interact among facts and norms in theory of legal argumentation, and legal decision is thus an active operation while not a ragid one.The traditional views seperate between subject and object, subjective and objective, and the law appears a determined, objective, close, and independent system. But practical legal argumentation can only take place in open system.A just decision should be made under debate by many people, and should not determined by only one judge, and thus can make legal argumentation possible. So the image of the judge Hercules has been replaced by the concept of 'audience', or 'interpretive community' in legal argumentation.Unlike scientific reasoning, legal reasoning is not a process of subsumtion, but a kind of 'transformation' or 'jump', and thus it is practical reasoning in nature.So people have not insist on the idea of 'one right answer' and contribute to make the judicial decision more reasonable and acceptable. A essential concept 'defeasibility'has been put forth to describe the dialectic and indeterminacy of legal decision and practical reasoning.As a whole, a great change is taking place in contemporary research of legal methodology.Although syllogism has been criticized by many people, it is still useful, and even inreplacable in legal argumentation, especially in the internal justification.Facing with irrational character of the legal realism and decisionism, the dichotomy of 'context of discovery' and 'context of justification' in scientific philosophy has been introduced into field of law, and the scope of legal argumentation is thus determined.Value judgement in judicial process, as an important topic in legal process, is justified through rational debate in theory of legal argumentation, though it also results in many criticism from various aspects. But concensus is still possible and a reasonable result can be reached in legal argumentation. Procedure is very important in legal argumentation and has been considered an independent aspect of law in philosophy of law.Among approaches in research of legal argumentation, the logical, rhetorical and dialogical approach are the most important. They interrelate in process of practical argumentation, and thus made law operate actively. The three approaches correspond with form, content, and pcrocedure such three dimensions of law respectively in legal philosophy.It is widely accepted that the theory of argumentation has primarily originated from analytic philosophy.lt also deserves to treat on the relation between hermeneutics and theory of argumentation since both hermeneutics and analytic philosophy have contributed to different tradition for a long time in philosophy.Based on today's philosophical and social backround, we can say that it legal argumentation is still impossible without knowledge of hermeneutics. Both of them contribute to the formalisation of the knowledge of law with the character of practical reason.