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The Rhetoric And Its Application In Judicial Argument

Posted on:2012-07-19Degree:MasterType:Thesis
Country:ChinaCandidate:Z W WangFull Text:PDF
GTID:2166330338459260Subject:Law of logic
Abstract/Summary:PDF Full Text Request
Rhetoric originated trial speeches in Ancient Greece. From then on, it became more and more mature for more than two thousand years. Today the rhetoric is not only used in the trial speeches of the time, but also used in other fields, owe to the outstanding contributions which were made by numerous rhetoricians. This means that a branch of knowledge with enormous vitality, would be destined to explore its potential in the long history, in order to performance its highest capacity to the society. In this aspect, the rhetorician of Europe and America lead in the world. Especially after the late 1800's and early 1900's, the Legal Realism began to criticize the Legal Formalism. At the same time, the exacted formal logic inference could not meet the requirements of the lawyers, because of its limited scope of application. However, the rhetoric was paid much attention to by lawyers, because it was involved with the daily communication and argument, and it met the needs for more legal reasoning and inference in the days of the Legal Realism. The wise rhetoricians continued to innovate the rhetoric theories and spread the scope of its application. As a result, the theories are very prosperous today. In China, the exotic rhetoric has called some attention from logic scholar, but it has not been studied further or applied completely in practice. Even in the trial field where it originated, the rhetoric has not applied completely. Due to the reality, this thesis begins with the introduction of the west rhetoric theories, on the basis of the imperfect theories about argument, mirrors the effect of the west rhetoric theories in the argument and reasoning, hopes to help enhance the lawyers'ability of argument in the trials.The thesis chooses the lawyers as the subject of the article and definitely discusses the importance of the rhetoric theories to enhance the ability of argument. It is also on the ground of the current situation of the argument in Chinese trials. Since the reform and opening-up policy in China, the legal theories have developed fast and the legal practice has made great progress. The prosperous market economy promotes the development of the individualism, deepens the citizens'knowledge of the individual rights, and strengthens their awareness of protecting lawful benefit. At the same time, the number of the lawyers and the law firms is bigger and bigger. But it is still possible that the citizens'rights not be defended and the justice not be done. Above all, the modern lawyers'system of our country started late. The more and more lawyers have not brought the improvement of quality and the ability of the argument. As a result, It is not easy for the parties to get successful defense when they met the question of the public power. The rhetoric, however, is such a theory that it depends on the formal logic, and reaches the aim of persuading by various ways. The emphasis of the thesis is the introduction of the west rhetoric theories, and it also provides special directions for the lawyers to address and defend in the court. We hope that the lawyers would not regret their defense for the parties, and if possible, they can persuade the judges to achieve the parties'claim.Today, the theories of rhetoric are at their best time, and have extensive and profound knowledge. Their keen feeler have trended to the psychology, literature, linguistic analysis, communicology, the communicative act and so on. They all prove the achievement of the rhetoric, and demonstrate the important value in practice. This is what the rhetoricians want to see. Excited for the rhetoric, however, according to the thesis, I have to choose to introduce some of their theories which can help to improve the lawyers'defense in the court. And the other theories, I have to quit in this article.That paddles in the sea of the rhetoric theories, we can find that the remarkable knowledge beneficial to the argument, unorganized embellished like pearls in the different time in history. In the originated Ancient Greece, Aristotle had listed systematically the rhetoric. He contributed so much to the rhetoric that no one could exceed him, and also that his devotion to the foundation of the rhetoric, affected profound and lasting. Kenneth Burke, the rhetoric after Aristotle's time, proposed a rhetoric theory that centered around"identification". Compared with ancient rhetoric theory with a view to"persuasion", his theory with a better, smarter version, because what he pursued was the identical benefit, conception and value. This laid the foundation for pursuing the sublime value. Belgian philosopher, logician, and rhetorician, Chaim Perelman added to the rhetoric theories an idea about argument theory, which was called"the new rhetoric". This idea was famous for its analysis about structure of daily argument and its concept of audience. So, it brought many initial points and skills to the body of theory. The philosopher of the modern time, Stephen Toulmin, developed a new method of argument on the base of rhetoric reasoning created by Aristotle. This method made the deductive reasoning more specific, and it was good for the person to master the structure of the argument. Toulmin devoted too much to the rhetoric theory for extending the foundational theory and pushing the rhetoric to develop. All of the theories will be introduced importantly in the article, they also will do good to the lawyers in different time of argument in trials. For example, according to the Aristotle,"Good credit is the best testimony", a lawyer with good credit will be believed to be honest, and righteous, and his address will be important to the audience. As what Kenneth Burke believed, the lawyer considers the judge's value propositions in the case, aims to pursue the same appeal, and persuade the judge. The practical method of argument, created by Toulmin, can make the trial argument structure clear, reasonable. The Perelman's theory can provide the lawyers more methods and more choices in the trial argument.All the means direct the lawyers to argue, raise the lawyers'level of argument. As a result, the parties get what they need, the defense of high level and high quality.The focal point of this article, on one hand, is the introduction of the west rhetoric theory; on the other hand, is how to use the theory in the trial for the Chinese lawyers. The innovation of the article is merging all the rhetoric theory introduced and using them in the different section in the whole trial."Practice is the sole criterion for testing truth."Every theory, which can only be used and can realize its value in the practice, is a vigorous knowledge. I wish to study the rhetoric theory further beginning with this article.
Keywords/Search Tags:rhetoric, rhetoric reasoning, judicial argument, pathos, ethos, logos
PDF Full Text Request
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