Dialectical Reasoning In The Application Of Law

Distinguishing from formal reasoning, dialectical reasoning is a reasoning which can get definite knowledge in the discussion of problems (topia) by rebuttal, distinction and induction, when the legal or factual premise is absent, or the premise is controversial. In short, dialectical reasoning is an instrument to seek propositions and conclusions from possibility. In dialectical reasoning, judges often use their own judgments to find a legal or factual precondition. Dialectical reasoning appears to loss objectivity with the involvement of judges'values and this will undoubtedly shaken the foundation of the rule of law. To regain the objectivity of legal reasoning, the article firstly demonstrates the concept and characters of dialectical reasoning in the comparison with formal reasoning, and proves its advantage over formal reasoning .Secondly, the writer gives a positive account of dialectical reasoning. The analysis of the nature of reasoning leads to some arguments against the objectivity of dialectical reasoning. Thirdly, the writer claims the objectivity of dialectical reasoning resting upon logics, paradigm of the legal community and the theory of legal argumentation. Finally, three approaches to guarantee the objectivity of dialectical reasoning in our country are suggested.The article is divided into four chapters.Chapter one explains what is dialectical reasoning. Legal reasoning is usually clarified into formal reasoning and dialectical reasoning. They are closely connected in some ways, rather than being independent. Practical reasoning is about what to do, and how to act. Legal reasoning is practical reasoning where the rules, principles and policies of the law must be taken as decisive. When the law (in the form of legislatures) can not deliberate about what ought to be done, judges have to use their moral wisdom to choose the proper reason. Correctly following the procedure is often important in how to come to a conclusion, for everybody has a fair chance to discuss, argue and debate. And this is how dialectical reasoning works. Practical reason and Dogmatic is the philosophical background. Chapter two proceeds to examine the adjudication and nature of...