The New Theory For The Major Premise's Constructing Of Legal Logic

The problem for the major premise's constructing of legal logic is an important research field in the legal logic study.The problem of the major premise's construction,in essence,is a choice problem to the cases based on the legal criticize in the circumstances that in the face of unknown,conflict and loss of the legal critera,the judge shall not refuse the existence of the juridical rules in the judical trial.This selection is based on the judge's discretion,but this does not mean that it is an arbitrarily selected or interpretative result.This must be a reasoning method which is based on reasonable,acceptable and understandable by parties.The problem of the major premise's constructing is to build some theories and provid some powerful argumentations for the judges' final selection.However,in the recent theories about the major premise's constructing,there is not a solution can entirely solve the above problem reasonable, but suffered some difficult problems such as "Münchhausen Dilemma",etc.Based on criticizing related theories of the major premises,in order to satisfy the judges' demands in the real trial,this article aims at exploring a more reasonable and more practical academic road in a new point of view.The first part of this article is to investigate the origin of the problem about the major premise's constructing of the legal logic.First of all,from the basic object of the research in the legal logic study,this article expatiates on the object of the research and the realical developing situation of the legal logic,and furthermore,discusses the objects of the legal logic research which are full of disputes presently and affirms the research value of the major premise in the range of the modern legal logic area.Secondly,in view of the above conclusions,this article will give a demonstration both from the aspect of the necessity and the aspect of the possibility of the major premise's constructing.The necessity of the major premise's constructing is the result of the limitation of the related argumentation theories about the major premise's constructing,as well as the urgent requirement of the judical practice.The major premise's constructing has the possibility because that our judges have their own free discretions on the cases in the reality and related theories have been supported in the theory area.The second part of this article aims to expatiate and analyze the argumentation theory related the major premise,and meanwhile,present a more reasonable theory avenue of the major premise that is inverted measurement of the conclusion.This section gives a valuation of the three main major premises which are on behalf of different directions and have huge impact on academia.Karl·Larenz's constructing theory of the major premise gives a detailed analysis of various situations existed in the major premise's construction.For different situations,this theory provides some simple methods and criteria,and clearly builds up the order of hierarchy among various constructing methods.But there is a shortage of the more concrete rules which hinder the applicable effect of this methodology in the judicial practice. Robert Alexy's construction theory of the major premise is based on the theory of procedural legal argumentation in which the calculation system of modern logic is full used and the rigorous speciality of this theory is deeply exhibited.But because of overrational,this theory encounters embarrassment in the process of legal major premise's construction with the core of its content.Having the background of philosophical interpretation study,legal interpretation which emphasizes the importance of the interpretation which is made by the judges themshelves puts forward main body's quality which is about the judge should be the main body of legal interpretation.But there is a deep self conflict which creats hardness in the judicial trial practice.Facing defects of the above various theories,this article introduces the related elements of the theory of pragmatism and puts forward the theory approach of the measurement of conclusion's inversion.This theory approach possesses the signs of diversity and openness, the criteria of relative reason,the aims of practice and the characters that suit is set up on the effectiveness of trial result.Insisting on the argumentation's criteria is the result of overcoming the problem of "Munchhausen difficulties" which is about if it can resolve the conflicts effectively,there is no necessary to seek the truth thoroughly.There is the problem of over difficult and lack of practice in the current theories.To solve this problem,this article wants to use a more practice method named "civilian style" philosophy spirit.The effectiveness of the trial result which is about we should compare for the final results caused by the conflict between the various theories and the principles is reflected to us.Choose argumentation criterion whatever it can solve the disputes and realize the equal trial of the case.The third part of this article is about the specific application of the measurement of conclusion's inversion in the judicial practice.This part chooses some representative civil cases,criminal cases and marriage cases,compares applications in the other cases,presents the conerete applicable methods of the measurement of conclusion's inversion,and finally, demonstrates the feasibility in its judicial practice.The measurement of conclusion's inversion adopts the practical effectiveness of law as its basical measurement criteria.Depending on the different effectiveness,judge decides which kind of rules should be used.Its advantage lies in:firstly,there is clear measurement criteria but no complicated and deep theory so that it can be seasily mastered and applied by our judicial practice;secondly,both of parties can get satisfactory effects and it is useful for the society and judicial construction's harmonious;thirdly,the court procedures can be strimed to avoid unnecessary judicial proceedings and save the judicial resources.However, the measurement of conclusion's inversion can not completely replace the major premise.It is not yet a universal theory approach.It can't destroy the balance of the entire judicial system for seeking the outcome of cases' and it can't neglect the further consequence that is the pursuit for the rule of law for achieving the best short-term effect of cases'.The study pays its attention to the premise of the theoretical framework,and it takes the judicial precedents to analysis and to testify the hypothesis,and eventually,it intends to solve the practical problems.The basic idea of the study is to reconstruct the theoretical framework, and it starts from the practical and theoretical potentiality,and proposes the theoretical framework.The study also critically takes the experiences of many methodologies conducted by many different scholars in various countries into consideration,based on the experiences, the study talks about the purpose and the drawbacks of the theoretical framework.The theoretical framework intends to borrow the research method from the west,and then,it is designed to solve the theoretical drawbacks and realize its purpose.The study takes the judicial precedents as a case study to testify the potentiality and possibility of the theoretical framework of the present study.The study criticizes the drawbacks of pragmatism and borrows its feasible points to reconstruct the theory,and eventually solve its theoretical dilemma at present,which is also the innovative point of the present study.On the other hand, the study also takes the judicial precedents to conduct a case study,which is a pragmatic case study.This goes beyond the drawback in legal research,which only takes the logic but the pragmatic in legal research.