The History Ang Future Of Judicial Syllogism

Law is one of the general measures of social regulation. The appearance of law was a great historical event in the human civil society. It means that social regulation changed from individual to general. The apprearance and operating of law is the subjective pursuer of human beings. Characterized by the general regulation, the operating of law means using the general rules to the specific case. Because syllogism is a deductive model from general to specific, it is inevitable that the syllogism appears in the process of law operating. Since the law came into being, the process of law operation is a syllogism as a whole. During the developing history of law, syllogism have experienced a course from appearance to forming to prosperous to declining. Once the legal formalism raised the status of judicial syllogism up to a high level as never before. Accompanied with the decline of legal formalism, judicial syllogism was forced to many unfair criticisms.The judicial syllogism is only the form of legal application, and it can not replace the whole process of legal application. The legal formalism represented by the jurisprudence of Concepts endowed the judicial syllogism with excessive expect on the basis of the blind belief in the Statute Law. The judicial syllogism, which only ought to be the measure, became the purpose of legal application at the pure legal formalism. This is the reason for the criticism to the judicial syllogism. As a model of legal application, judicial syllogism itself isn't wrong. Syllogism can only makes sure of reasonability formally in the course of legal application. The realization of essencial reasonability requires that the judge combines the judicial syllogism with some other ordinary legal means under the guidance of the conscience and justice.Judicial syllogism provides the legal application with a relatively certain frame. It is a legal method setting in the thinking of judge and passes through the whole judicial process. Compared with the ordinary legal methods, judicial syllogism is the leader of the legal application. The ordinary legal methods can only prepare the materials for judicial syllogism. Scholars who discuss and study the judicial syllogism must distinguish it between the legal reasoning as an ordinary legal method. As a main model of legal application, judicial syllogism is not out-or-date and will not so. Various legal theories including legal argumentation can only make judicial syllogism more reasonable, more corresponding with the expectation that people grant towards it. They will not take the place of judicial syllogism and will not become the main model of legal application. Only if people want to realize the rule by law, they must keep on believing in the judicial syllogism.