Analysis Of Judicial Syllogism

Judicial syllogism plays an important role at the judicial practice. However, it doesn't mean that the conclusion automatically follows from a major premise and a concrete case. General propositions do not decide concrete cases. It is for this reason that judicial syllogism has being criticized by some Jurists. However, it is undeniable that Judicial syllogism is still the main mode of reasoning in making judicial decisions. It can help judges to build trial activities and guide them in reaching a conclusion from rules of law and a concrete case. It makes the verdict more reasonable and acceptable. To some extent, it reflects the certainty of law and the predictability of judiciary decisions which people pursuit. It is also helpful for judges to solve social disputes and then makes it possible to achieve the harmonious development of society. But the legal system is not perfect,the reasoning model of judicial syllogism is not so useful that it can deal with every case correctly.The judicial decisions cannot be researched as conclusions from the logic syllogism. The problem is not to draw a conclusion from given premises, but to find statements, both of general principle and of particular fact, which are worthy to serve as premises. On the one hand, the premise of the legal norms has limitations. The rules of law may cause ambiguities of understanding because of several meanings of a word, legislators'negligence as well as technical flaws. The rules of law have a high degree of abstraction and generality. When they are adapted to adjust the complex and diverse social relationships, a number of special cases are often excluded from the law. Once law has been drawn up, it has been behind the development of society. There are some social relationships which cannot be adjusted by law, and sometimes it is difficult to determine which general rule will be employed in judging the situation in question. On the other hand, the minor premise of the judicial syllogism is facts which don't belong distinctly and obviously to a class of things to which the general principle applies. Personal elements affect the selection of the facts which are to form evidential data. Personal elements cannot be entirely excluded, while the decision must assume as nearly as possible an objective, rational and impersonal form. There is a wide gap separating the reasonable proposition that judicial decisions should possess the maximum possible regularity in order to enable persons in planning their conduct to foresee the legal import of their acts, and the impossible proposition that every decision should flow from antecedently known premises with formal logical necessity. According to the traditional concept of facts and norms, it is very difficult to solve this problem with the method of judicial syllogism.With the rise of philosophical hermeneutics and its general application in the field of law, it provides a new way of thinking for solving this problem. It has broken the traditional model of the subject-object and changed it a new one, which makes a legal decision a process of finding law instead of the application of law. In the process of finding law, the facts do not match the provisions, thus the legal decisions could not be obtained directly through the conclusion. In the process of finding law, the formation of both major premise and minor proceeds tentatively and correlatively in the course of analysis of the facts and of prior rules. On the one hand, generalizing the facts to upgrade them to the provisions; on the other hand, making concretion of the provisions to extend them downwards to the special case. By this way, the two is equalized before making conclusion. At this point, rules of law are treated as tools to be adapted experimentally to conditions as they actually obtain, rather than as absolute and intrinsic principles. Attention will go mainly to the facts of social life, and the rules will not engross attention so as to become absolute truths to be maintained intact at all costs. Legal reasoning is not only a model of judicial syllogism, which is the combination of a number of new thinking, such as argument thinking, etc.