A Theoretical Research On Concept Of Legal Reasoning

This paper regards current research situation of legal reasoning concept at home and abroad as theory background , Regards history development of legal reasoning concept as statement thread . Regards research on formal legal reasoning concept as the starting point of statemant, Regards the criticism to formal legal reasoning concept as breakthrough point, It analyzes and criticizes formal legal reasoning and its reasoning mode systematically and exhaustively. Through criticism it advances research on formal legal reasoning to research field of practical legal reasoning. And has announced that existing concept of practical legal reasoning is based on the foundation with value judgement and value appraisal. it is a form of legal reasoning which announces rationality and acceptability of result as centre of the whole reasoning. Then contemporary theory on rationality from informal logic will be introduced to the field of practical legal reasoning by author, the purpose is to seek a kind of comprehensive , dynamic legal reasoning concept.The full paper is divided into four parts altogether:In the introduction, By analysing and reviewing research situation about legal reasoning concept at home and aboard, Author have announced the question which exists in existing research, and has introduced the research task and approach of this paper briefly.Chapter one summarizes some legal reasoning concepts existing. By commenting and analysing existing concept, the first chapter has announced the origin of studying legal reasoning.and legal reasoning concept can be divided into formal legal reasoning and practical legal reasoning, has drawn back the approach of research thought of this paper at this point.Setting out from Descartes's rationalism doctrine , code influence and influence of analytical philosophy , Chapter two announces forming and development of formal legal reasoning concept , and its basical reasoning mode. Respects to formal legal reasoning concept the appraisal of positive meaning and insufficient theory is Carried on finally. Chapter three concentrates on introducing practical legal reasoning concept, and announces that practical legal reasoning which is a form of reasoning is based on value appraisal and value judgement. Through introduction,analysis and appraisal of existing practical legal reasoning concept , I provide my own definition about practical legal reasoning. Then has introduced the concept of value judgement and basic reasoning mode of practical legal reasoning, and modern development of practical legal reasoning concept finally. Theory form of existing practical legal reasoning concept is introduced from four respects including theory of Toulmin's argument demonstration diagram, theory of Habermas's communicative action, theory of Alexy's legal argument and rationality theory of Peczenik's legal justification. evaluation criterion of existing legal reasoning concept is introduced finally, Theory of practical legal reasoning concept is appraised and analysed separately from preferential standard of choosing the mechanism of value judgement, acceptability standard and rationality standard, Theory of practical legal reasoning concept is appraised and analysed separately from preferential standard of choosing the mechanism of value judgement, acceptability standard and rationality standard, Theory of practical legal reasoning concept is appraised and analysed separately from preferential standard of choosing the mechanism of value judgement, acceptability standard and rationality standard, so that it will march toward the comprehensive , dynamic legal reasoning theory finally.