The Theory Of Legal Reasoning In The Perspective Of Consequentialism

The theory of legal reasoning about the consequentialism is a new field of research in the science of law logic and legal reasoning. It is a theory in the forward-looking that according the possible consequence of the judgments, we can thoroughly comprehend a lot of interest behind the case. This theory needs the courts make choice among the competition of the interest after the judgment, then evaluate the systemic, long-term consequence about the judge, according the different value consequence after the different choice, and at last make a reasonable judge. The aim is to help the courts that in front of the complicated case, they should, in the perspective of the social needs, consider every possible consequence after the choice that they made before, to test whether the choice is valid, then achieve the aim of the socialism law that administration of justice for the people. In fact, the theory of legal reasoning about the consequentialism set off from every possible consequence after the judgment, provide for the courts a practical juridical method, to search out a new reasonable, practical road, to meet the need of the courts in the trial. The significance of this thesis is that: (1) meet the need of the courts in the trial. It is that in the complicated cases, by the theory of legal reasoning about the consequentialism, the courts can quickly find out the rules applied here, then form the reason in the valid judgment; (2)seek for the reason to open out the judgment, to achieve the aim----justice.In the first part of this thesis, the author investigate the origin of the legal theory in four perspectives: philosophy, law, logic and social background. First, the emergency of the practical philosophy cause the philosophers to think about the validity of the human behaviors. In this scene, the morality of the law leads to the consideration again, and the practical logos comes to be researched. Second, as the conceptual jurisprudence loses its influence gradually, the courts get some discretion, then the courts must prove the validity and acceptability of the reason for decision. Third, the emergency of the non-formal logic provides the theoretical support. Last, as the people become more aware of their rights, they demand much more about the justice, and the judgment must be fully demonstrated that the parties and the others could accept them.In the second part of this thesis, this thesis, first, summarizes the theory of legal reasoning about the consequentialism of several different scholar, and conclude to the definition of the theory of legal reasoning about the consequentialism. Cardozo emphasizes to measure different interest by the value judgment and then accord the results of the judgment to judge a case. Posner insists that the courts should analyze the different interests behind the cases on the ground of the social need, then investigate and evaluate and make the choice at last. McCormick believe that when the courts judge cases, especially the complicated cases, they can find the judgment reason from the legal rules and legal principals which might cause the different consequences to the society. In different period of the history or in different perspectives of the courts, the judgment reasons for the same case are not the same, and sometimes the last judgment may be in contrast. The author, according to the contrast of the theory of legal reasoning about the consequentialism, elaborates that it is that in the range of the legal order, the courts, when they make judgments, should apply a legal rule or a legal principle, and examine the potential influence to the social interests, the other probable consequences and the opposite consequences, then reduce to the theory of the argumentation.Secondly, this thesis analyzes and concludes the consequences, believes that the consequences doctrine argument may come to a road: not every consequence of the judicial decisions, but a consequence of legal context and legal professional thinking. It demands that the consequences should be concluded from the end of the law, not from the arbitrary choices. At the same time, the consequences can be classified to legal consequences and social consequences; long-term consequences and short-term consequences; political consequences and legal consequences, and so on.Thirdly, the author believes that the diversity of the probable consequences necessarily demand a criterion to evaluate the potential consequences. It is that a balance can be achieved among every kind of interests (for example,civil liberty and national security, individual privacy and the right to know). The legal principles, the interest balancing and the sense all can make the criterions. Especially the sense has the practical valuation.In the third part of this thesis, the author insists that if there is not a limitation to the consequences of legal reasoning doctrine, it certainly cause the judicial departments to bend their knee to the administrative organizations and cause the judicial decisions tend to the office holders. Especially in China, the phenomenons that the strong executive power lacks the supervision and the office holders intervene the courts, still exist, so the tendency of the administration of justice must to be pay attention to. Also, the consequences of legal reasoning doctrine, in fact, lack the constraints to the discretion, so it may come to legal nihilism. As there exist the shortage and the inadequacy about the consequences of legal reasoning doctrine, the author thinks that it should follow the due process of law and the process of the justification. The courts should explain his choice, the judgments should be public, the black case work should be ended, then the party can lose reasonably and win clearly. Only the consequences of legal reasoning doctrine follow the two processes, that can the judgments meet the social demands, and achieve the aim to safeguard the social justice and to bring the justice for the people. The emphasis of this thesis lies in the formation of the consequences of legal reasoning doctrine, by the methods of case analysis, to find its feasibility and value in the judicial practice. Its innovation is the definition of the consequences of legal reasoning doctrine and to criticize the doctrine and self-examination, then it proposes that only the doctrine link up with the process of the justification and the process of explanation, can the doctrine take on the theoretical and practical meanings.