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An Account On Legal Argumentation In The Legal Practice Of China

Posted on:2008-11-17Degree:MasterType:Thesis
Country:ChinaCandidate:S E M M T WuFull Text:PDF
GTID:2166360212991280Subject:Logic
Abstract/Summary:PDF Full Text Request
Since the late 1960's & early 1970's, research on the theory of legal argumentation has been popular in the west. In comparison, it was due to come in the 1990's in the Chinese academic circle, although, it is still in its early childhood, but remarkable progress has been made. Regarding the scholars working on legal argumentation, legal researchers & logicians make up the main stream, while the legal researchers working on it from the perspective of legal methodology, logician working on it from the perspective of formal and informal logic. Legal argumentation is a kind of presumptive, unmonotonous verbal communication that happens in the framework of the valid law; its conclusions are defeasible by nature. In legal argumentations, you always try to convince your counterpart in the legal dispute and the audience to accept your legal claim by putting forward reasons & facts. Legal argumentation is an indispensable part of the legal reform of any modern state. On this respect, it is safe to claim that research on the theory of legal argumentation is of great significance for studies on logic, theories of the rule by law & legal practice.This paper consists of three chapters. Chapter one includes three parts, in part one, discussions carried out about the concept of argument and legal argumentation aimed at expounding & analyzing the essence of legal argumentation; In part two, main concern is about legal reasoning, legal argumentation and their relations with legal argumentation; In part three, consideration made on the academic & practical significances of the studies on legal argumentation.In chapter two, we mainly reviewed & remarked on the earlier researches on this field. It also has three parts. in part one, we reviewed and remarked on the theories put forward by Stephen Toulmin, Frans H. Van Eemeren, Jurgen Habermas, and Robert Alexy; In part two, we briefly reviewed the studies carried out in China; In part three, we put forward our concerns about the shortcomings of studies being done not only in china but also in the west.Chapter three is the essential part of this paper that can be considered the creative part of the whole paper. In this chapter we pondered about the characteristics of argumentation in courts, the justification of legal orderings and the legal argumentations during legal negotiations and their main principles. This chapter consists of four parts, in part one, attention is attributed to the argumentations during the court hearings; in part two, we switched to discuss the justification of legal orderings by jurists; in part three, attention is laid on legal negotiation which is ignored by many scholars is taken into consideration; part four is the conclusion of the whole paper, considerations are directed to what should be done in the reforms of Chinese legal practices.
Keywords/Search Tags:argument, legal argumentation, legal argumentationl, legal negotiation, legal reasoning
PDF Full Text Request
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