Font Size: a A A

The Acceptability: An Analytical View Of Legal Methodology

Posted on:2011-09-25Degree:DoctorType:Dissertation
Country:ChinaCandidate:G N SunFull Text:PDF
GTID:1116360305950910Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The researches concerned with acceptability which present in many theories of social science have attracted the attention of the jurists who research into legal methodology. There are definitions to acceptability not only in subject out of jurisprudence, such as philosophy, linguistics and so on, but also in legislation, justice and law enforcement interior of jurisprudence. In view of these definitions above, we could summarize some core characteristics of acceptability. In the first place, problems of acceptability consist in social sciences widely. Secondarily, audience standard is the most important characteristic of acceptability. Confronted with theories and facts, subject is always specific and often embodied in audience. Thirdly, there are always compromise characters in acceptability. In view of that audience standard is the starting point of acceptability, and there are various audiences existing, it is difficult to find a single scheme in response to the diversity of the audiences, especially to puzzling questions. Under the circumstances, a variety of perspectives and ideas are likely to be a serious conflict. Fourthly, uncertainty is an important feature of the acceptability. It is similar with the compromise as a characteristic. To be accepted, flexible measures must be used in face of complex audiences. Fifthly, the acceptability respected the separation of form and substance. Purposes of the flexible measures are likely to be separated. Sources of the acceptability within the legal methodology are various. New Rhetoric and informal logic are primary, they are getting more attention in legal methodology research for social reasons, legal reasons and academic reasons. Over the first chapter is mainly a general introduction of the acceptability within the legal methodology macroscopically.The key question is how to achieve acceptability of the judicial process after basically establishing the goal of the acceptability from the practical point of view of legal methods. And this is the main part of this article. The paths to achieve acceptability can be divided in two dimensions in ChapterⅡto ChapterⅤ——macroscopical construction and microcosmic method.The second chapter introduces the audience in the judicial process. It derived from the core characteristics of acceptability. The audiences including legal professional groups, parties and the general public also are objects of acceptability. In terms of the legal professional groups(legal interpretation community), interests hamper the interpretation of the law to split the formation of community, taking over the analysis of the community from Max Weber and Zygmunt Bauman. However, in consideration of the common interests of their own profession, the construction of legal interpretation community starting from a minimum is still entirely possible. This chapter extends the previous only to the parties and the public as a limited audience, the audience will be also included in the scope of the judge, as the latter is to fight for the former object. To get the judge as an ideal audience to accept this side of view, we need analysis their characteristics and requirements deeply. The more prominent common feature is "common personality". It includes that the judge should have the accurate of legal system and source of law in knowledge level firstly. Secondly, from the thinking level, the judges must thinking with the former see to read the case and legal norms. Thirdly, from the technical level, the judges need to grasp the various legal methods of operation mode in judicial process. Finally, from the psychological level, the judges should make great efforts to presupposed "ideal personality". Facing of the parties, the judges also need to get the parties acceptance as much as possible from the quick resolution of disputes and the guarantee of their performance point of view. On the one hand, although the use of right of action is common to all parties, but the influences from different parties are quite different. On the other hand, there are already a variety of designs intended to enhance the acceptability of the parties to judges in the justice system. Whether discovery, or court debate, is to enable the parties(and their agents) to comprehend the referee process and its basis, and then accept the final outcome of the ruling. If the existing judicial system can make people get the full benefit, it can achieve a large extent acceptability of the parties. In a word, judges and the parties are essentially listeners each other in judicial process. They both make influential judgments with mutual constraints and scramble.The presence of the audience defines the field and background of the acceptability, however, the consensus of the third chapter is the starting point to achieve acceptability. The presence of the audience provides unlimited information, and the consensus is the core concept of audience in common, the entire argumentation of judicial process and its results must be based on the consensus. Generalized consensus includes the final conclusions of the referee, it running through the entire proceedings, and the established results only have static significance. General sense of consensus mainly refers to the consensus before the outcome of proceedings, especially the consensus experiencing in the judicial process which are continuously revised. From the stand point of starting the judicial process, the omission of consensus will allow the parties do not choose justice as a way to resolve disputes, much less initiate judicial proceedings. Consensus is the precondition, so that argument can be carried out and discussed deeply. No consensus that any dispute settlement mechanism can not be started, let alone the proper settlement of disputes. From the view of the current running state of judicial power, the formation of consensus in judicial process has two main routes, those are the interpretation of judge and party consultations. In the former case, the consensus reached in the judicial process are mainly carried out through its power of interpretation. Aufklaeungsrecht system mainly explains the facts and legal norms in the proceedings. Judges should particularly explain the questions raised by the parties adequately. On the latter point, the parties are the direct affected objects of judgment. If a broader consensus is reached in the judicial process, it can be the content of a judgment directly. Even if the parties can reach a consensus on the nature of dispute settlement, they do not need access to the judicial process. From this point of view, the parties could consult with each other through a variety of ways including the judicial process to increase the content of their consensus for laying the foundation of the formation of an acceptable sentence. When it comes to the environment of China, parties can take advantage of their strength and resources to achieve a more professional and convenient communication and consultation, due to the continuous growth of the legal profession groups and the rapid development of the practice of law in particular. Therefore, we also need to pay attention to the consensus formed by the consultation of the parties. Consensus is particularly emphasized in contract law in civil areas. Traditional criminal law emphasizes the crackdown and penalties against individuals. Consultations are not allowed in criminal law, let alone tolerate the existence of a consensus. So the defendants respond passively at best. However, a new penal system represented by Plea Bargaining and victim-offender reconciliation has amended the traditional view of the above partly.After constructing the basic framework, the realization of acceptability also need some specific legal methods. Given the current status of the research of legal method, legal interpretation and legal argumentation are mature relatively, which is the two specific methods to achieve acceptability used in this paper. In the fourth chapter, the author analyses how legal interpretation serve achieve acceptability mainly from the authority perspective. The content, type and extent of authority affect the acceptability enormously and directly. In the modern society and its judicial process, the foundation of authority to enhance the acceptability is that putting emphasis on the procedures and related systems. The value that scholars place on authority, it's surface is to find the legitimacy of the ruling, but the deeper meaning is to make society accept the ruling. That is, the important of authority and its research essentially aims to achieve better acceptability. From charismatic authority to the traditional authority and then to the rule-based authority, the role of program becomes more important. With the overall transformation of society, external force is no longer the only acceptable means of achieving, and achieved through process has become a popular call to acceptance. Through the emerging social hot cases can be seen that the general public have not only concerned about the final results of the case, but also the process of case, although the result is still very important. And of course, it is a separate issue if the non-professional groups to what extent can understand the judicial process or not. However, the gradual attention on the proceedings are now beginning the clues. Both the overall power system and the rules of social reality can not change significantly in a short time, in the background of this, from the perspective of acceptability theory, we should stress the importance of efforts to establish judicial authority through legal methodology. Whether the whole judicial system, legal system and political system, or some clear rules and unspoken rules existing, they can not change alone depending on the judicial power of its own. Based on this, the direction of the judiciary should be able to enhance the quality of the judicial process and the results as much as possible in the existing scope to maximize the acceptability. Specific interpretations of legal methodology including semantic interpretation, historical interpretation, systematic interpretation and social interpretation, are essentially applied for the judicial process by borrowing different types of authorities to achieve the purpose of enhancing the acceptability of judgments.In the fifth chapter, the author interprets acceptability mainly from the main purpose of legal argumentation angle. That is in terms of justification The status and role of justification express in the following aspects:first, it could ensure the purpose point of the legal method; second, it could integrate the construction of the system of legal methods of their own; thirdly, it can prevent corruption in the judiciary to a certain degree; finally, the spirit of the role it play in the program is highly consistent. The main content of justification is to achieve legitimacy of a process or conclusions, therefore, a process or conclusion can be accepted by people. In other words, legitimacy is a reason to achieve acceptable but not all. The content of legitimacy is always in flow with the times being, but the acceptability which legitimacy serves is invariable. The main methods of legal reasoning include logical argumentation, dialectical argumentation and rhetorical argumentation. Among them, the logical argument method and the dialectical argumentation method can be attributed to rhetorical argument essentially, and they are in serve to achieve acceptability. The immediate purpose of all the argumentation methods is to achieve justification, and a deeper purpose of justification is still to achieve acceptability. From this perspective, the real effect of the legal argumentation is due to justification to achieve acceptability. The exertion of the specific methods above helps the acceptance to referee process and results in turn.In short, the main structure and content of this article can be summarized as——based on audience, analyze the consensus, using methods to achieve acceptability. Of course, there are still many problems and queries in acceptability whether in theory system construction or in judicial practice. No single theory can go conqueringly. We should adopt the attitude that analyzing queries meticulously, constructing systems rationally, with a view of contributing to the judicial practice.
Keywords/Search Tags:Acceptability, legal methodology, legal interpretation, legal argumentation, audience, consensus
PDF Full Text Request
Related items