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Virtue Legal Argumentation Theory And It’s Application

Posted on:2012-11-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:J RanFull Text:PDF
GTID:1226330371955510Subject:Legal theory
Abstract/Summary:PDF Full Text Request
The issue that Legal argumentation theory want to resolve is how to convince people of a legal evaluation or decision? From the view point of generalized legal argumentation, in the history of thoughts of law , there are two main approaches to resolve this issue.The first is to establish and justify right public criterions and convince people of a particular legal evaluation or decision depending on human nature. In general, this approach divides people’s lives of choice into facts of human nature and norms of behaviours, and there are the following difficulties: which kind of human nature we should depend on? Is a choice confirming with the facts of human nature right? There are disagreements about the answers to these questions. So, it can not satisfy the desire of legal argumentation for publicness. This default exists in different forms of this approach which includes utilitarianism, emotivism(including legal rherotic), rationalism(such as legal logic and dialogical legal argumentation theory) ,liberalism ,and so on.The second is to establish and justify right public criterions and convince people of a particular legal evaluation or decision depending on people’s legitimate aims (such as goodness) outside human nature. It is the approach of virtue ethics which divided people’s lives of choice into facts of human nature , norms of behaviours and legitimate aims. In the early time of it, on the one hand, people tried to establish right criterions (virtues) of legislation depending on super goodness , and on the other hand, they made it aim of law to make people well-doers. However, because of not distinguishing goodness of individual from goodness of community, their ideas about goodness especially super goodness had defaults. The inheritors developed it from two different directions. One is agent-based virtue ethics which claims that the actions of a well-doer are the criterions of our behaviours. But it has to deal with the following difficulties: how can we know who is a well-doer? How can we know what he will do in a particular situation? This make it lack power expected. Another is goodness-based virtue ethics which tried to resolve the issue of legal argumentation theory based on common goodnesses ,especially super common goodness. Indeed, from the viewpoint of logic, this approach can satisfy the desire of legal argumentation for publicness. But, what are common goodnesses? Especially, what is the super goodness? They had not either defined clearly, or their definitions lacks publicness in nature.For resolving the issue of legal argumentation theory, based on the tradition of the goodness-based virtue ethics, virtue legal argumentation theory is established. The main standpoint of it include the following: Firstly, people’s lives of choice can be divided into the facts of human nature, norms of behaviours(virtues) and goodnesses. Secondly, the bases of legal argumentation are common goodnesses; common goodnesses must include super common goodness; the super common goodness is flourishing of human. The objective demands of flourishing of human are respecting and cherishing lives and healthes of human, maintaining a harmonious relationships among people and between human and nature, and making now available chances open to all.This theory based on above standpoint can resolve the issue of legal argumentation theory. The reasons include: firstly, it can establish public criterions of legal argumentation, because flourishing of human and the other common goodnesses are public, and the standards of legal argumentation(virtues) can be entailed necessarily from them; secondly, it can justify the standards(virtues) established by it, because flourishing of human and the other common goodnesses are good; thirdly, it can resolve the other problems of legal argumentation, such as formal standards and methods of argumentation.Depending on virtue legal argumentation theory, to the virtue criterion of co-prosperous justice, the virtue criterion of precedent justice ,the virtue criterion of respecting freedom rights and the virtue criterion of respecting legal facts, we may define them as the followings: Firstly, all of them can be applied into a special field. The virtue criterion of co-prosperous justice can be applied only to deal with the interest relations that can co-exist and should co-exist; the virtue criterion of precedent justice can be applied only to deal with the interest relations that can not co-exist or should not co-exist; the virtue criterion of respecting freedom rights can be applied in the field except the field that justice can be applied; the legislative criterion of respecting facts can be used only to deal with whether a actual fact should be absorbed into a legal rule or be ruled out of a legal rule; the judicial criterion of respecting facts can be used to deal with whether the fact of a case is the required fact of a legal rule or not and is real or not.Secondly, they are validated by legislators and judges in a special community.Thirdly, they should be beneficial to flourishing of human, or at least not: a/ to disregard lives and healths of human; b/ to destroy the harmonious relationships among people and between human and nature; c/ to limit now available chances open to all.
Keywords/Search Tags:legal argumentation, human nature, virtue, goodness, flourishing of human
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