On Legal Reasoning

The legal reasoning in judicial trial strengthens the consistence and legitimacy of judgment. The theory of legal reasoning is a topic of general interests in research on the theory of the science of law. The theoretical research of strengthening legal reasoning is significant in theory and practical for the legal construction and reform. This paper consists of 5 parts: I. Introduction The important role of legal reasoning in legal construction, the significance in theory and practice of strengthening the research of legal reasoning are discussed concisely. II. Pondering legal reasoning theory of contemporary China. For a long time, Lacking the need and promotion of reality, jurists have not paid enough attention to legal reasoning and the research of legal reasoning of our county has not been on the essence and features of legal reasoning out of requirement of legal reasoning in judicial practice, but from the point of view of general rule and method of inference of logic. Inevitably, legal reasoning pronounced theoretical logic color and lacked legal color and legal reasoning was fixed position on the application of logic in law because the logic as the theoretical basis of legal reasoning was mainly formal logic. The definition of legal reasoning has the following one-sidedness: 1, The original meaning of inference refers to: A, thinking in logic way or inferring from grounds of argument and premise. B, giving reasons: to explain, to argue, to convince or to move while legal reasoning is not only to infer the legal conclusion but also to prove it legitimate. So legal reasoning refers to the inference in wider meaning. 2,Viewing from the development of logic, inference includes inferring, arguing and proving. 3, The position of formalized legal reasoning has the limitation of reality. Ill . The connotation of legal reasoning. First this part inspects the legal reasoning theories of schools of the science of law and is regarded as the basis of this research. Then, after the strong points and weak points of the definition of several legal inferences now available are analyzed, we make a new definition: legal reasoning refer to the process in which presupposing known legal provisions and facts, principal part specially designated infer and prove legal conclusion in law practice. This definition reflects basic property of legal reasoning: it is a process of creating knowledge; it is a process of proving legitimately: it is practical. IV.Analyze of the legal reasoning process. The process of legal reasoning is analyzed from form, philosophy and method.3Vewing frOm thC general fOrm of legal reasoning, legal reasoning is a PrOCss oflogical deduchon. The characteristic of substanhve inference of legal reasoningdeterndnes that fOrm of it can not be portrayed in detail. but it can only be described bymeans of thinking philosophically:l,begal reasoning is a ProCess of unity ofWsites.2,hegal reasoning is an inference process of abstraChon rising to sPecification.It is determined by the contradiction of abstractbo, univereality and the SPeCificatiOn ofeach case. begal inference includes fonnal infcrencc and substanive inferenee viewingfrOm the fOrm of it. FOrmal inference is the inference of deCiding case by means ofdeduction, conclusion and analogy according to the law of fonnal logic. In thecountries such as China where law is made, the main form of forml inference isdeductiOn. FOrInal inference is the essential form Of legh reasoning FOrma1 inference ishelPful to realize the exPlicitness inevitabili...