The Relevance Of Folk Law And Legal Reasoning

In generally speaking, the relevance of folk law and the legal reasoning represent in the course of trail. Syllogism is one of the most important methods in legal reasoning. But many scholars think negative about its formalization of this method . In fact what they criticize isn't the syllogism itself but formalized application of its major promise. Surely, the effect of the legal syllogism in justice depends greatly on the correct use of the major promise. In general, syllogism is the legal reasoning about the use of law. Inductive method is the induction of facts.In the common law, the judge is entitled the right of "make law", so the judge can change judicial precedent. When the judge believes that the folk law is fit to the case, he can use it directly. But in the countries where only the statute is allowed, the "folk law" is not the really law. But in these condition, the folk law is a kind of institutional., which is the evidence of the case. At this time, the judge must make a choice between the evidence under the folk law and the evidence under the state law. In fact, the judge should find " reflective equilibrium" .The legislation require universality, while the folk law is a kind of local knowledge. So the folk law can only be used in the course of trial. Because the folk can enter the state law only if the judicial decisions which admit the folk law be cited in the following case. The judicial precedent system should be built up.