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Legal Rhetoric And It's Application In Law

Posted on:2010-12-20Degree:MasterType:Thesis
Country:ChinaCandidate:Z Y ChengFull Text:PDF
GTID:2166360275960534Subject:Law of logic
Abstract/Summary:PDF Full Text Request
The western classical rhetoric was born in the Syracuse of ancient Greece, and the earliest came from the court speech. With the in-depth study, Aristotle made the rhetoric theoretical, systematic, expand to other areas. After hundreds of years' developing, also through a large number of modern scholars' efforts, rhetoric was renewed enormous vitality. Such as Perelman's "New Rhetoric", Toulmin's legal argument theory, Burke's principle of identity, Habermas's theory of Communicative Action and Legal Negotiation, all made great contribution for the rhetoric's development. The so-called legal rhetoric means in the legal field, the communication action for the purpose of persuasion through the way of argumentation. Legal rhetoric is not the rhetoric's simple using of the legal field, but more focused on ways to use argumentation to convince the people, to some extent to accept persuading. In other words, legal rhetoric is not only concerned about the use of argumentation method, but more concerned about the effectiveness of argumentation. In the law's special "field region", the value of the law and the value of the social members are the same, in line with the value of audience is justified. Therefore, legal rhetoric is a comprehensive legal discipline. Legal rhetoric consists of three elements: argument, persuasion and communication. Argument is the method; persuasion is the purpose; communication is the behavior action, therefore legal rhetoric has many characteristics: it focuses on field region, attaches great importance to psychological factors, and safeguards the unity of interests and compromise, keeps equality of people who persuades and who is persuaded. Legal rhetoric is a part of legal logic, and belongs to informal legal logic.Legal rhetoric is used in broad areas, from legislation to justice, from litigation to non-litigation, we seeing its own arena. The use of legal rhetoric can be divided into forcing acceptance and non-forcing acceptance. The so-called forcing acceptance is the persuading method which is backed by the force of the law, while non-forcing acceptance can be further divided into argumentation-type and persuasion-type. The biggest difference between argumentation-type and persuasion-type is that there is a third person participating in persuasion-type activity, while the argumentation-type is just two sides' activity for persuading each other. Western ADR (Alternative Dispute Resolution mode) rising from the United States, extends to the most countries of Anglo-American law and civil law systems, forms a global trend, and in which consultation and mediation are important ways. The traditional legal culture of China emphasizes that disputes should be resolved in a diversified, multi-layered way; in Chinese legal reality, judicial mediation is our major civil litigation systems. Therefore, the system of judicial mediation has not only legal culture soil, but also the needs of legal reality. Judicial mediation is the main battleground of legal rhetoric. Judicial mediation should adhere to the principles of justice, the principle of legality, the principle of rationality. In particular, judicial mediation is necessary to grasp the initiative, control the situation, make measure with the different time, locality, and people, and study strategy.The area of the law is the origin of rhetoric, but legal rhetoric has been ignored long time. As the progressive development and improvement of China's socialist market economy, the rule of law is also required high. Legal rhetoric accords with the Chinese environment and the requirement of ruling by law rule of law. However, the study of legal rhetoric is far from sophisticated, we still need to absorb nutrients from a number of rhetorical theories, and then make the return road of rhetoric wider and longer.
Keywords/Search Tags:Rhetoric, Legal rhetoric, Legal Logic, Persuasion, Argumentation, Communication, Judicial Mediation
PDF Full Text Request
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