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Legalization Of Rationality And Justice Procedures

Posted on:2004-08-18Degree:MasterType:Thesis
Country:ChinaCandidate:D M HanFull Text:PDF
GTID:2206360092485310Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Procedures, which attain legitimacy prerequisite based on the integrate requirements of the separated facts and norms, become legitimized owing to the challenges of the internal events and the interventions of the external events. The legitimized procedures are bound to have their practical requirements of rationality. Therefore, this thesis, combining the two practical modes of the procedures: the Inquisitorial System and the Adversary System, indicates the nature of teological rationality of the former and of normal rationality of the latter, and assumes that they both embody the rationality of procedures in one dimension. Furthermore, it introduces the theory of communicative rationality as a theoretical tool to analyse the problem of procedure rationality, and argues that procedures involvesthree kind of ontological categories, i.e.criminal (or controversy) facts, legal norms and subjective will, so as to reflect that rational procedures ought to integrate all fact-pusuing, justice-indicating and sincerity-expressing into a unity. In addition, it applies pragmatics as an instrument to analyse and testify the above-mentioned rationality requirements of three aspects of procedures.In view of fact that both the Inquisitional System and the Adversary System are products of deliberate design, plans of constructivist rationalism are doomed to self-deconstructing. Theoretical result of these two deliberately designed procedure modes is pluralism or contexturalism. Certainly, pluralism or contexturalism does't mean to overturn the communicative rationality procedures, on the contrary, they are just as its protection and guarantee.
Keywords/Search Tags:procedure, legitimacy, communicative rationality, pragmatics, procedural justice, procedural deconstruction
PDF Full Text Request
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