The Research On The Juridical Reasonableness

The study of contemporary legal methodology focus on seeking for a good way of value judgment under the existing legal order which can make the juridical reasonableness achieved. Because of its unique advantages of "make the free valuation open", the rhetoric is taken as a proper approach to achieve the juridical reasonableness. However, how much significance does the rhetoric exactly has for realizing the juridical reasonableness? What is its function and limit? What is its position in the system of legal methodology? What kind of attitude we should uphold when we use it? In order to answer such questions as below, we need to explore the specific rhetoric theories deeply.Although it is under the influence of the western study that we start to engage in China’s current legal rhetoric research, studying the problem of juridical reasonableness from the perspective of rhetoric is not lack of problem consciousness in China. However the levels of rule of law in our country and western countries are in the different stages of development, we also face the hard problem of how to realize the juridical reasonableness. In recent years, with the social, economic and cultural development in our country, more and more hard cases emerge in the judicial practice, and the key to dealing with the hard cases is finding a good way of value judgment. Under the context of lacking rational thinking and favoring intuitive thinking, it is useful for us to limit the arbitrary value and standardize our judicial value inference if we study the problem of juridical reasonableness from the perspective of rhetoric.The framework and content of this article is as follows:The introduction narrates the research origin and the significance of this article, shows the research present situation of this topic, and tells the research train of thought and framework of this paper. The first chapter discusses the basic problems relating to the juridical reasonableness. The high esteem of the syllogism in judicial inference led to the missing of the substantial justice in modern time which promoted the juridical purpose turning to seeking the reasonableness. Unlike traditional activities, the notion of juridical reasonableness pays attentions to the role of subjective factors such as emotion, passion and morals in the juridical activities, which introduces the value judgment into the juridical activities successfully. Because it pays attention to the value judgment, the theory of juridical reasonableness takes the correctness as its fundamentals as well as the certainty, namely, the juridical activities should not only achieve the case justice, but also conforming to the positive law. Not only achieving the case justice, but also conforming to the positive is the connotation and the basic requirements of juridical reasonableness.Seeing from the connotation and the basic requirements of the juridical reasonableness, we found that the key to solving the problem of juridical reasonableness is value judgment. From the perspective of value judgment, the inner logic of searching juridical reasonableness can be described as follows:Judging value objectively——limiting the arbitrary of subjects——Giving reasons. And if we take this inner logic as a benchmark for analyzing the theories appeared before such as the legal realism, Hart’s discretion theory, Dworkin’s judicial integrity principle and legal hermeneutics, we can find that although they have noticed the role of subjectivity in the juridical activities, all of them took the judge’s "conscience" and "rational" which is an "black box" to the others as an approach to realizing the objectivity of value judgment, however, it is difficult to ensure the objectivity and correctness of the value judgment. Rhetoric emphasizes the debate between the subjects, so that it can open the "black box", and can be looked as an alternative of the judge monologue model. Seen from this point, it plays great role in seeing for the juridical reasonableness.The second chapter discusses the knowledge of rhetoric used in the judicial field. After sorting out the historical change of rhetoric which used in the judicial field, I found that the argument factor is of great significance for rhetoric and judicial judgment, therefore rhetoric in the judicial judgment should be understood as "rhetoric" as an argument. According to the historical change of rhetoric in the judicial field, the theories of rhetoric as an argument mainly includes the stasis theory, topic, Toulmin’s argument model, and Perelman’s new rhetoric.The first two chapters are the basic content of this article.The juridical reasonableness covers double requirements of case justice and conforming to the current law, and rhetoric theories in the sense of argument mainly relates to the stasis theory, topics, Toulmin’s argument model and Perelman’s new rhetoric. Based on this, this article will take the two requirements of the juridical reasonableness (case justice and conforming to current law) as the benchmark to explore the significance and limits of those four theories to solving the problem of the juridical reasonableness.The third chapter focuses on analyzing and discussing the stasis theory. Although it originated from the classical court debate rhetoric, it is still widely used in today’s judicial judgment. As a kind of argumentation framework, the advantage of the stasis theory lies in the characteristic of argument, application in the case, the guidance on the order and direction of argument, and debate by giving reasons, etc. But its main shortcoming lies in its descriptive characteristics and only focusing on debates between plaintiffs and defendants, which makes have difficulties in seeking the juridical reasonableness.The fourth chapter focuses on the interpretation and discussion of topic. I firstly illustrate its historical origin and characteristics, as well as its thinking process, and then I analyze its strength and weakness in seeking the juridical reasonableness from the angle of realizing case justice. Finally I study the probability and limit of the merit of topics thinking and the systematic thinking. The topic thinking is a kind of case thinking emphasizing the context of a certain case and advocates seeking for the location and solution of problems, which is helpful to the achievement of case justice. However, it takes premise as foundation and basis of an individual judgment and it seeks to solve a certain problem after discussing all factors related to the problem, which cannot guarantee the achievement of juridical reasonableness. The application of topic on judicial fields also faces another key problem, namely how it integrates with the systematic thinking. Seen from the perspective of the existing three paths and methods to solve this problem——argumentation in the open system, analogy thinking, and "the dynamic system "——it is possible for them to integrate, but there are still many technical problems for them to integrate in practice, which shows that the application of topic will destroy the binding of the positive law,as to cannot guarantee the achievement of juridical reasonableness.The fifth chapter is an analysis of Toulmn’s argument model. It is a "procedural" argument model which brings evaluative factors into the judicial syllogism. Seeing from the perspective of value judgment, the concepts of "warrant","backing""refuting" and the "argument fields" make the value judgment into the judicial judgment, so as to help to the realization of case justice. However, the confusion of its theory and the concepts of makes it appear much weakness. Seeing from the perspective of its application, Toulmin’s argument model focuses on its six elements, and takes the six elements as expanded variables in an attempt to deal with any complicated legal argument, but it is only a descriptive theory. Because of its lacking of a set of analytical and evaluative criteria, it has no much of substantial significance to ensure the realization of juridical reasonableness from the perspective of technology. The sixth chapter deals with the interpretation and analysis of Perelman’s new rhetoric. Perelman’s new rhetoric takes argument and persuasion as a tool for realizing justice and reasonableness, and interprets how to ensure the realization of justice from the perspectives of audience, the starting points and the argument technology. Outwardly, Perelman’s new rhetoric satisfies all the imagination of the juridical reasonableness, however, the new rhetoric is a kind of descriptive rather than a normative theory in practice. It is not suitable for solving the problem of the juridical reasonableness because of the lack of analytical tools.The content of from the third chapter to the sixth chapter is the core of this chapter.The seventh chapter summarizes the whole text. In order to make us have a comprehensive understanding of rhetoric, I discuss the contribution and restriction of rhetoric in seeking the juridical reasonableness on the base of above discussion. As a whole, introducing rhetoric to the judicial judgment is benefit to realizing case justice, but in is not helpful for keeping the binding of the positive law because it lacks of analytical tools. Then I analsize the necessity of logic method to the usage of rhetoric according to its shortcoming in keeping the binding of the positive law. This chapter put forward that logical method pay a essential role in juridical field, and it still has foundational status in the legal methodology. Then I explain the institutional conditions which the rhetoric needs, and point out that the application of rhetoric in the judicial field should take a fair, democratic and legal system as the prerequisite. Finally, I show the usage of rhetoric in our country judicial field, and look forward to its future development.Due to its unique advantages on seeking the juridical reasonableness, rhetoric has also been used as a approach to solving the problem of juridical reasonableness in our country. However, the difficulties which we are facing in dealing with the problem of the juridical reasonableness are from those in western countries, which leads the application of rhetoric in our country cannot appears with the attitude of the anti-formalism like the west. We should strengthen its funciton on the value judgment and restrictions of arbitrary specially. In view of its unique advantages in the value judgment and the special significance to the limit of arbitrary in our country, we can make it stay in the core position of legal methodology as well as the logic method in its future development. But if we really want to make it stay in the core position of legal methodology, the rhetoric theory should transform from the descriptive theory to the normative theory. From the point of the current status of the legal rhetoric studies in our country, in order to develop a normative theory of rhetoric*on the one hand, we should pay attention to explore the process of argumentation; On the other hand, we should set out a set of reasonable analytical tool and evaluative standard for argument on the ground of our legal culture.