The Theory Of Legal Argument And The Change Of Judicial Thinking Mode

In this article, after inspecting the history of German law methodology since Friedrich Carl von Savigny and the influences of different periods of legal methodology to the judicial thinking mode, we found that under the influences of different thoughts of legal methodology there comes into being two kinds of judicial thinking mode, namely the decisional judicial model and debatable judicial model. According to which kind of factor, law provision or the judge, is dominated in different period, the decisional mode can be divided into decisional judicial model of legal provision and decisional judicial model of the judge.The decisional judicial model of legal provision think that the judge must strictly follow the legal provision in the process of judicial judgment, even the legal provision is ambiguous, the legal interpretation must be conducted, must also be subject to the will of lawmakers completely, therefore, the process of judicial judgment is just put the case facts into the law, is just the process of applying the law to the case facts. The decisional judicial model of the judge think that the law can’t be perfect, inevitably there are holes, must play the active role of the judge, through methods such as method of legal interpretation. At the same time, the question of case facts and the question of applying law in the judicial process can’t be divided, also can only rely on the judge to solve it. Therefore, in the whole process of judicial judgment whether the solution of the legal issues or facts issues must be centered on the judge, the judge play the key role in the process of solving these problems. These two kinds of judicial thinking mode are much different in specific claims, but they are both belong to the decisional judicial model, because the two judicial thinking modes are both based on the national philosophy of determinism. The judicial model of legal provision is based on the legislative power, and thinks that judicial verdict is a kind of legislative decision in essence. The decisional judicial model of the judge is based on jurisdiction, and thinks that judicial verdict is a kind of judicial decision in essence, In another word, they both think that judicial verdict is just a decision that based of the state power. Therefore, it would be determined that they must exist subjective defect.For overcoming the subjective defect of the judicial decisional mode, theorists have conducted various beneficial explorations. Ultimately the explorations become the legal argumentation theory. The legal argumentation theory is not only a legal method, but a theory that study all of the argumentations about or of the law. This theory is also applicable to the judicial argumentations. So, under the influence of legal argumentation theory, it leads to a new judicial thinking mode that namely debatable judicial model. The debatable judicial model advocate that in the judicial process all the subjects should argument for their judicial opinions on the base of following the legal procedure that as the institutionalized form of the rules of argumentation. Eventually they will reach a consensus on judicial verdict. So the debatable judicial mode overcomes the subjectivity of the decisional judicial model from two aspects: one side by advocating all the subjects should argument for their judicial opinions on the base of following the legal procedure to make the judicial verdict, it will overcome the decisional judicial model’s defect by making decisions to make the judicial verdict; on the other side, by put the judicial verdicts on the consensus through free argumentations, it will overcomes the defect of basing the judicial verdicts on the state power.