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A Study On Judicial Syllogism

Posted on:2008-04-06Degree:DoctorType:Dissertation
Country:ChinaCandidate:Q S ZhangFull Text:PDF
GTID:1116360212994805Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The traditional thinking pattern of judicial syllogism is too rigid to deprive judicial process of the vigor it should have sustained. Against such a background, the theoretical research on legal logic and legal argumentation tends to replace it with some formal rules or substantial standards. However, the research does not expectantly keep the judge from being involved in complicated adjudication; it only aims at building an ideal argument mode instead of providing the judge a clear guideline to follow in adjudication. Through the investigation on the two legal systems and judicial practice in China and related theoretical exploration, we have noted, judicial syllogism, as the thinking technique in the process of adjudication, cannot be replaced both in judicial practice and theoretical field. Rather than casting away judicial syllogism, what we need to do is rebuild it structurally to make up its theoretical limitations.In Chapter I, I examined the judicial patterns of continental genealogy, Anglo-American genealogy and legal system in our country. In continental genealogy, deductive judicial pattern is often employed, a fact that is in line with its history of codification, the common natural law and the judicial philosophy of legislation of supremacy of law. While in Anglo-American genealogy, reasoning by example is the judicial pattern, which agrees with its tradition of case law and judicial doctrine of supremacy of law. The power of modern Roman law lies in the logic advancement of abstract concepts while common law draws its power from the settlement of specific dispute. Superficially, the judicial operation of continental genealogy works through the mutual reference between the legal writing and the case development while case law takes effect through pan-reasoning among cases; the former mainly concerns about tallying case development with legal regulations while the latter involves more than often agreeing the current case with a precedent. Therefore, these two have little in common. However, judges with Anglo-American genealogy background do not stop themselves at focus on the literal correspondence between the current case and the precedent; they go deeper to analyze the judicial reasons of their predecessors and extract from them the recapitulative legal principles or legal rules. Some of them hide themselves many years in cases of the same lineage; some of them are stipulated by legislative bodies in the form of code, and in this sense, they are the same in essence as those judicial reasons obtained from statute law. On the contrary, judges with continental genealogy background do not reach their conclusion from legal regulations as naturally as the scholars have said: they shift their attention between legal rules and case situations until the current case is specified by legal regulations, a process each and every case shall go through.Therefore, the difference between these two legal genealogies do not lie in whether there exists judicial syllogism, and the major difference is in aspects such as the sources of the major premise, its expression forms and the acquirement of the minor premise. Judicial patterns adopted by judges with Anglo-American genealogy background involves a comprehensive legal thinking technique, although adjudication is a process based on a general principle hidden in legal materials as precedents and statute law, in which the judge compares the precedent and the current case, summing up the common and recognizing the different, so as to make a sentence on the case. The process has no difference in structure than the deductive pattern in continental genealogy. Professor Lin-li holds that judicial logic of these two legal genealogies is not substantially different, and because of that, judicial logic of these two legal genealogies is the same in essence. It is just that judge in Anglo-American genealogy play a much more important role in the process of locating the major premise and the minor premise. The modernization of judicature is a process of realizing rationalization of judicial forms based on formal logic. Despite the existence of two legal systems worldwide——the system of positive law and the system of case law, both of them takes judicial syllogism as its fundamental structure of judicial technique. Under such two legal systems, judicial syllogism have met different problems, aroused different concerns and therefore formed different specific judicial techniques. In the system of case law, advanced judicial reasoning has been developed while in the system of positive law legal explanation technique long developed has been closely followed.The judicial pattern of our country has similarities with that of continental genealogy as well as that of Anglo-American genealogy. The judicial pattern of our country has adopted the continental genealogy's judicial syllogism pattern. Moreover the judiciary has powerful authority in the trial. Therefore the trial pattern belongs to doctrine of function and power. In practice, it is not the legal principle and norms, but the realities of the case and social moralities which are put in the first place when reaching a judgment. Thus the mode is also similar with that of Anglo-American genealogy. This kind of judicial pattern is conducive to the justice in specific cases, but bring serious harms to the legal system, resulting in actual abolition of laws. On the Contrary, if we enforce the judicial syllogism too strictly, it will come into a situation of rigidity. Besides its inherent deficiencies, it may be detrimental to specific justice to apply judicial syllogism under the shield of overall justice. However the justice in specific cases is just the foundation of the overall legal justice.In Chapter II, I will analyze the three characteristics of the traditional judicial syllogism. The three characteristics are generalized as follows: firstly, there is a complete legal system, or such a legal system can be built under a rational guide; secondly, the ultimate effectiveness of the judge's final judgment comes from a totally definite truth and it is the existence of the truth that decides the only right answer of the judgment; thirdly, value judgment is excluded from the judge's judging process to stop the judge from making a judgment according to legal feeling or value acceptability. That is to say, what ought to be is separated from it really is, criterions (values) and the truths are separated as well. Among all of the three characteristics, the first one is the most important. To build a complete legal criterion system, logicians and jurists make great efforts from different aspects. Logicians try to formalize the judicial syllogism by deserting the truth of the proposition itself and adopting its formalized way, namely, by the truth and the deducibility of the formalized logic proposition. The ultimate goal is to make the judgment based on the judicial syllogism take on a controllable pattern by careful Boolean calculation, which could get rid of the real world's effects on the judgment and promote its purification and vitrification. Jurists try to achieve the goal by the standardization of the judicial syllogism. They think that a perfect set of conceptions pedigree or rules pedigree can be built and within which, every kind of conception or rule, with an order of from top to bottom, will form a pyramid of possessing containing and absorbing relation. Legal decisions are to absorb the facts of the cases into the pedigree. Anybody, as long as he masters this set of pedigree, will get the same result. In the thesis, the author is going to prove that all the efforts on the way is not quite effective and it seems terribly dry and dull by reason of its distance from legal life. Judging from the purpose of the common syllogism, it does not call for completeness of the major premise. It just emphasizes that an introduction must be given if there is a containing and absorbing relation between the major premise and the minor premise. The fact that the traditional judicial syllogism considers the legal system as a complete system is an ideologized historical product.The three characteristics of the Theory of the judicial syllogism were ever considered to be the right factors, but they happen to be the reasons why the thinking structure of the theory of three characteristics is subject to arguments against. As I have analyzed, these characteristics are not the essence of the theory of the judicial syllogism, however they are the result of ideology of the latter-day nomocracy. Therefore all the criticisms of the theory of the judicial syllogism are attributed to the falsehood called externalism. In the view of the critics, the traditional judicial syllogism Theory ignored the imperfection of the legal system and the difficulty of involving all the facts and considered the procedure to be the utterly consistent illation, thus there is a formalistic falsehood. However we will come to a conclusion that: the traditional judicial syllogism included the content which didn't belong to the judicial syllogism. That's due to the inaccurate apprehension of the judicial syllogism. This inaccurate apprehension led to the inaccurate criticism of the critics.Judicial syllogism all along provides the support of the thinking technique to the existence and function of legal environment. Casting off judicial syllogism means casting off the modal foundation which judicial judgment reckons on. Therefore, judicial syllogism is not abandoned, but transforms to what extent and how to be re-elucidated to accommodate with the practical condition of judicial judgment. The main idea is that restoring the inherent function and structure of the ordinary judicial syllogism and regarding it as the description of the model or the process of judgment, not just using as a reasoning method. The benefits of this description are as follows: (1) it joins the justifications which lie various phases by the traditional judicial syllogism to ensure the consistency of the justification of judicial decisions. Meanwhile the contradictive merit argumentation will unveil during the clear description of the process to ensure the coherence of the merit; (2) it provides the comprehensible process description to the judges and the parties, so it conquers the unacquainted sense which comes from the parties due to the abstruse logic expressions and academic conceptions; (3) It accords with the natural token of the justification of decisions in the practical judicature by the uniform justification modal to describe the simple cases and the complicated cases. Certainly, some corresponding amendments should be made to the three characteristics of the traditional judicial syllogism: first, an emphasis should be transferred from on the objective truth to on the recognitions of values, thus unbinding the judges from the arbitrary mode of seeking truth and turning to the parties and other legal professionals for the recognition of values; second, a bridge should be built between facts and values by the key conception—rules of adjudication in the reorganized judicial syllogism; third, the failure in the perfecting the legal system forces people to accept the imperfectness of the legal system, and the role played in the systematic researches has been changed from providing the judiciary with a perfect legal system to equipping them with a necessary system of knowledge for reaching the decisions.Then, as the judicial pattern of the judiciary, what is the structure of the judicial syllogism? What is it like in the world of the legal fact? The metaphor of a black box in traditional syllogism can not show the whole truth. It's more like the Noah Ark floating in the sea of reality. As illustrated in the following, a new kind of structure is given to the judicial syllogism and used to describe the process of decisions:Supporting rules↓Rules of Affixation↓…↓Rules of Adjudication (legal facts)↑↓Case facts↓↓DecisionsThis structure is put forward at the end of Chapter II and expounded in Chapter III.Chapter III is divided into three sections in parallel with the structure of the judicial syllogism. In the first section, I focus on the core of the judicial syllogism—how the rules of adjudication is brought about and proved. The rules of adjudication I refer to are different from which of Muller and Esser. The judges make decisions directly under the guidance of it, which are neither legal norms nor the rules that only apply to a specific case. If the judges manage to find a specific legal regulation in the existing legal system, this legal regulation justly is the rules of adjudication. However, being unable to find a proper legal regulation in some cases, the judges must create some rules of adjudication in accordance with the legal spirits and principles. From this perspective, the judges actually create nothing other than the rules of adjudication. This process is not only the byproducts brought about by the judges' passiveness in making decisions, but also embodies the judges' will to substantiate the rules.When a judge establishes a rule of adjudication, he must follow some principles. In this thesis, I will put forward three principles: predictability, generalness and responsiveness. Predictability is rooted from a famous saying of Holmes: "Law is a prediction", which requires that the rules of adjudication established by judges should be forecasted by the parties and their lawyer. By generalness, distinction should be made between a rule of adjudication and a specific-case rule. It decides that, when a judge establishes rules of adjudication, he shouldn't just think of resolving a specific case on his hands but forming a legal norm for other cases of the same kind. Surely, it needs to be tested by the responsiveness if the established rules of adjudication can become legal norms. The established rules of adjudication by judges must face three sorts of audiences: the parties of cases and their lawyer, the other legal professionals, common people.This thesis will also discuss the process of establishing a rule of adjudication. In my opinion, the legal feeling urges a judge to do this work. Because a rule of adjudication has not been generalized, it needs the backing up from a supporting rule. The support doesn't depend on the compulsive power of the former but the identification with it. So supporting rules may be superior theories, principles, rules, or be inferior ways and means identified by common people—it is also called "incompletely theorized agreements" by Sunstein. Sometimes, for establishing rules of adjudication, it not only need the identification of common people at its starting point (supporting rules) and argument projects, but also must have proper deductive process for every step from supporting rules to rules of adjudication. However, the above process is not always coherent because of the jumps between them. Thus we must add one or several rules that are not generally accepted to make the whole process deductively valid, and I call them "Rules of Affixation" as quoted from Peczenik's terms. We also would meet other difficulties, for example, how to deal with the situation where there are several acceptable rules of adjudication at the same time. This will be discussed in the part of the article which is about the conflicts and the proper choice of the adjudication rules.The second component part of judicial syllogism, which is also the second step of reaching a judicial decision, is a process of summarizing objective facts into legal facts. The question we will come across is how the objective facts will gradually be transformed into legal facts, i.e. requirement facts. Firstly, this involves the change in the way of thinking, change from conceptual thinking into typological thinking. This means mere comparisons between requirements can't reflect the essences of law. Instead, we must understand the meanings existing in the facts on the whole. Although one single requirement can not reflect the legal meaning by itself, to find the legal meanings of objective facts, we can gradually seek a balance between the objective facts and legal regulations, basing on the combinations of will, relationship and social harmfulness. This thesis refers to this process as "the move between facts and regulations". This process of judges' reasoning can also be described as Rawls' "reflective equilibrium".In the structure of judicial syllogism, the core issue is how to form the rules of adjudication that can be generally accepted. Once the rules of adjudication are established, which begins with legal feeling and ends with "ultimate support" rule, mostly questions about judges' decisions have been made. The rules of adjudication deal with requirement facts which have legal meanings. It is not only a process of finding minor premise, but also involves rules of adjudication and have connections with the founding of the rules of adjudication with supportive rules and rules of affixation backing up for the proof of rules of adjudication. Hence the judicial decision can be reached according to traditional judicial syllogism. Nevertheless, in this process, there are still some problems to be solved. First, whether there is the only right answer? Second, do the judicial decisions really reflect requirements of parties and social audiences? Third, what will cause to judicial decision by the judge's social parentage? In my personal point of view, it has marked significance to regard "the only right answer" as the judges' lofty dream. As a goal, it can drive every judge to reach the most appropriate decision instead of getting an acceptable answer; Under the consideration of the final decision as a core, judges will not be bounded by the simple judicial rules, but have a full consideration of various factors of the case, and try to obtain a balance of prudence. The sociological investigations towards judges have proved that the individual factors of judges exert fewer influences than imagined on the judicial decision, supported by the judicial syllogism and restrained by the judicial procedures. Thus, this thesis tries to describe the whole process of reaching judicial decisions. However, inevitably there are some deficiencies that need your pointing out.
Keywords/Search Tags:judicial syllogism, structural reconstruction, Adjudication rules
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