The Study Of "Law As Rhetoric" Theory

"Decision" of the Fourth Plenary Session of Eighteenth has put forward specific requests for strengthening and standardizing "interpretation and reasoning of legal instruments", "public involved in the judiciary, judicial publicity, judicial reasoning and argumentation" and "avoiding judicial secret operations". Legal rhetoric is one of the hot topics in Chinese legal methodology research. But how to conduct legal rhetoric according to legal thinking and legal mode? What are the specific rhetoric methods of legal rhetoric? What are the connection of legal rhetoric with traditional legal methodology and legal dogmatics? Will the use of legal rhetoric inevitably undermine the authority of the law, resulting into legal uncertainty? All those core legal rhetoric issues have not been involved in China nascent legal rhetoric research. Chinese scholars introduced and constructed legal rhetoric complying with theoretical approach of new rhetoric mainly. Emphasizing and pursuit of audience recognition, legitimacy and acceptability and constructing argumentation system, new rhetoric highlights and regresses legal thinking to thereof contextual correlates, dialogue and debate, but results into the structural conflicts of legal rhetoric and rule by law, legal dogmatic and traditional legal methodology. Different from new rhetoric, "Law as Rhetoric" theory is a unique and obvious law dogmatic tendency legal rhetorical theory, presented and constructed by Dr.Professor Chen Jinzhao through series of works. This theory believes that legal rhetoric shall try to persuade audience according to the standardization of the legal system itself, and the main purpose of legal rhetoric lies in the legality of legal argumentation. Legal rhetoric is in no way in conflicts with rule by law, but the "basic outlet" to maintain legal authority, to overcome legal fragmentation, to construct thoughts of rule by law and legal discourse. From the concrete rhetoric methods, "law as rhetoric" theory claims persuasion and argumentation shall in line with legal concept system and legal principle system constructed by legal legal concepts, legal rules, legal principles, legal theories, legal doctrines and legal methods etc. Legal rhetoric is not against traditional legal methods like legal interpretation, legal reasoning and value measurement, but against rhetoric by those methods. Legal authority and legal scientific dogmatic paradigm decide that legal rhetoric should not only regard persuading audience and argument contextual rationalism as legal argument principal axis, but also make balance between and mingle legal dogmatic systematic thoughts and legal rhetoric problematic thoughts. Legal rhetoric should search legal system itself to discover and construct principle elements of argumentation premise and rhetoric problematic thoughts. Thus, in China’s current legal reform context, "law as rhetoric" has specific practical and theoretical meaning. On the one hand, this theory provides theoretical reference for the study of how to conduct legal rhetoric, specific constructing legal rhetoric methods and completing legal rhetoric. It could match with strict and uniform judicial reform in China as well as standard legal rhetoric to realize legal instruments’"interpretation and reasoning", public involvement, judicial publicity, judicial reasoning and argument. This theory avails legal rhetoric of the balance between the standpoint of legal dogmatic and rhetoric schema of traditional rhetoric, resulting into an dynamic balance among legal realization, rationality and acceptability. On the other hand, "law as rhetoric" theory urges prompt liberation of legal rhetoric from rhetoric context, thesis thoughts, audience theory and arguable nature of legal argumentation and try to use legal system normativeness as legal rhetoric argumentation, to avail legal personality like judges of legal audience’s persuasion and to guarantee security, stability and predictability of legal significance.Therefore, "law as rhetoric" is an important and inevitable legal theory in China’s current legal rhetoric. Based on this theory, researcher could avoid some meaningless dispute, and shoot directly to the core issues of legal rhetoric, constructing a specific and complete legal rhetoric system that could maintain law and persuade audience. However, the theory has theoretical defects and imperfections:shorting of theoretical justification of its theoretical construction and approach; lacking of due integrity, delicacy and clarity for its constructed legal rhetoric and legal rhetoric methods. Noncompliance with dichotomy of "rhetorical invention" and "rhetorical argument" results into mingling and ambiguous discourse of legal rhetoric argumentation premise and rhetoric methods. Though "law as rhetoric" theory emphasizes "planning and constructing" of legal rhetoric method, it fails to discuss in detail how legal rhetoric "plan and construct".Based on rational justification of "law as rhetoric", all limits analysis and systematic reconstruction, this paper reconstructs legal rhetoric argumentation premise, legal rhetoric method system, legal rhetoric "planning" and legal rhetoric expression theory, and according to traditional legal method principle, legal argumentation procedure and legal dogmatic theory, transfers legal rhetoric method into more dedicate and applicable legal rhetoric principles.This paper contains seven parts, below is the details.Introduction part explains the problem consciousness and research significance of this paper, illustrate oversea and domestic legal rhetoric research status and problems and states the research method, research thoughts and discourse framework of this paper.Chapter one is summary of the origin of "law as rhetoric" theory, basic construction and thereof theoretical and practical significance. "Law as rhetoric" theory is not only based on author’s critical introspection on legal rhetoric research in China, but also the continuation and expansion of his existing theoretical system like "rule by law against interpretation", rule by law attitude, judicial restraint theory and legal methodology, "law as rhetoric" theory could be categorized in legal discourse rhetoric and legal argumentation rhetoric. The value standpoint of "law as rhetoric" contains legality, rationality and acceptability. "Law as rhetoric" theory contains concrete rhetoric and "planning and structuring" of rhetoric. In current Chinese legal rhetoric research, though "law as rhetoric" has unique and practical significance, it has serious theoretical defects and imperfection.Chapter two is about rational justification of theoretical connotation, value standpoint and rhetoric method of "law as rhetoric". In legal discourse, legal rhetoric could be justified by Goodrich’s legal discourse theory, analysis rhetoric and essence rhetoric. In legal argumentation, legal rhetoric could be justified by practical rhetoric, classical rhetoric and classical rhetoric and new legal rhetoric. In legal value standpoint, "Law as rhetoric" theory could be justified by essence rhetoric, Dworkin’s "whole notions", McCormick’s legal rhetoric and legal dogmatics theories. From concrete rhetoric method, "law as rhetoric" is in line with and supported by legal rhetoric and legal dogmatics theories construction represented by Perelman, Wolfgang Gast, Fritjof Haft, etc. The reason why "law as rhetoric" claims "planning and structuring" lies in:searching for understanding and acknowledgment of argumentation participants; real interveining of systematic thoughts and problematic thoughts; coherence of legal argumentation and open and disputable nature of the argumentation premise.Chapter three analyzes all kinds of limits of "law as rhetoric" theory. Though the main and core points of "law as rhetoric" theory could be justified theoretically, it has certain defects in construction approach and argumentation:definition of legal rhetoric always hovers between "legal discourse" and legal argumentation, failing to shape clear theoretical approaches and systems; vague definition of legality, acceptability and rationality and thereof relationship arrangement and "roughness handling" could not eliminate their potential conflicts, but cause larger conflicts. Given the fact that all its constructed legal rhetoric methods could be used as legal rhetoric tools, it could not be used as or transferred into real legal rhetoric method or legal rhetoric schema. Though above "planning and construction" claimed by "law as rhetoric" could be categorized into legal rhetoric planning, it could not form the whole rhetoric layout, only as an incomplete rhetoric planning with internal defects.Chapter four reconstructs "law as rhetoric" theory from whole legal dogmatics perspective. The possible reconstruction owes to, on the one hand, legal rhetoric theory claims the requests for legal dogmatics, and on the other hand, legal methodology and legal dogmatics contribute to the construction of legal rhetoric system greatly. Based on this, the concept and value standpoint of "law as rhetoric" are redefined. According to the dichotomy theory of "rhetorical invention" and "rhetorical argument",and on the basis of "law as rhetoric" theory, this paper constructs legal rhetoric argumentation premise, legal rhetoric method theory, legal rhetoric "planning" and legal rhetoric "expression" theory respectively.To repair and complete "law as rhetoric" theory, chapter five constructs legal rhetoric doctrines system. The application of legal rhetoric methods should comply with traditional legal methods doctrines as well as the requests of procedure rules of legal argument and norms of legal dogmatic. In order to guarantee rhetor argument according to the law, restrain the rhetoric behavior of each parties, legal rhetoric methods should be transferred or constructed into all kinds of legal rhetoric principles. Legal rhetoric principles shall have certain connotation, value and function. It should not only provide corresponding legal doctrine for legal rhetoric, contribute to rule by law’s dynamic realization in legal argument, and merging of systematic thinking and problematic thinking to expedite an consensus between both parties. Legal rhetoric construction should follow legality, rationality and practicality. Legal rhetoric doctrines system are formed by rhetoric rules of rules, rhetoric rules based on elements outside rules and rhetoric rules based on deductive.In chapter six, the retrial judgment of Ganlu case presents the specific application of "law as rhetoric" theory after reconstruction, i.e. judgment rhetoric. The main procedure of judgment rhetoric includes proposal, argumentation and planning. The proposal shall center on legal disputes of a case, search, filter and construct argumentation premise combined with the problematic thinking of topica and casuistry and legal dogmatics systematic thinking. The judgment rhetoric theory needs special legal rhetoric guidance to apply to legal rhetoric. In order to realize the best persuasive effects, judgment shall choose suitable rhetoric planning according to each case’s rhetoric context and the reaction of audience during reasoning. Only by complying with guidance of legal rhetoric argumentation premise theory, legal rhetoric principle and legal rhetoric "planning", arbitrary and recklessness in legal rhetoric could be avoided and audiences persuasion could be merged with legal authority or legal dogmatics.