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Comparative Study Of Legal Reasoning And Legal Argument

Posted on:2009-08-16Degree:MasterType:Thesis
Country:ChinaCandidate:X C ZhangFull Text:PDF
GTID:2166360242998451Subject:Logic
Abstract/Summary:PDF Full Text Request
Nowadays, the study of legal reasoning and legal argument is a hot subject in the field of legal philosophy. However, no matter in west countries or in China, in the past or now, the use of these two concepts has always been in great confusion and their differences and connections are not effectively arranged. This is not good for people to go deeply into these two fields in theoretical study, and it is also not good for people to achieve the practical aim of studying them. For the above reasons, this essay attempts to study legal reasoning and legal argument by comparison, expecting to make out their differences and connections and promote the unification of basic utterance in the studying field of legal philosophy.This essay discusses the differences and connections between legal reasoning and legal argument mainly from three aspects: implication, method and function. The whole essay is divided into three major parts.Part one, distinction of the implication of legal reasoning and legal argument. Firstly, this article analyses the classical implication of reasoning and argument in logic field, as well as the differences and connections between them. Then, on this basis, it summarizes people's different comprehension of legal reasoning and legal argument from aspects of subject, method and object, and analyses relations between them. Finally, this article brings forward our arrangement to legal reasoning and legal argument.Part two, comparison of the methodology between legal reasoning and legal argument. In this part, this article first summarizes rational methods in legal reasoning and irrational factors affecting legal reasoning. It especially carries out the differentiation between material legal reasoning and dialectical legal reasoning. Secondly, it summarizes rational methods in legal argument. Thirdly, this article compares the briefly corresponding rational methods of legal reasoning and legal argument, and discusses the differences and connections between them and that how irrational factors affecting legal reasoning becomes rational in legal argument.Part three, functional analysis of legal reasoning and legal argument. Here, it first summarizes some viewpoints on the their functions by scholars who call their theories legal reasoning or legal argument, and points out the improperness. Secondly, in the light of our definition of legal reasoning and legal argument, this article divides afresh and discusses their function detailedly. And this article differentiates the direct function and the derived function in the function of legal reasoning and legal argument and points out the relation between the direct function and the derived function.
Keywords/Search Tags:legal reasoning, legal argument, comparison
PDF Full Text Request
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