Judicial Syllogism And Value Judgments

The application of judicial syllogism embodies reasoning process of judges. Since the rule of law ideal over the past modern times would be to unscrupulously limit the subjective of judges with maximum, be to remove person's oneself limitation. So people of the past all make every effort to remove the value factors while discussing judicial syllogism. However, in the judicial practice, people want to completely abandon value factors in the judicial syllogism is impossible. Finding the major premise, establishing the minor premise, inferring the conclusion as well, this permeates through judge's judgment of value. Investigating the reason, firstly, the lawmaking is a set of system of concept of value; secondly, the judicial judgment is the process that the concept of value in law concretizes. Therefore, this paper attempts to combine the judgment of value to discuss judicial syllogism, to look forward to reaching going deep into judicial syllogism, understand that to the reasoning process of judge in tiny view.This paper consists of a preface, there parts and a conclusion. Although refers to quite broad, but throughout it takes the judgment of value as centre in the process of constructing of judicial syllogism.The preface mainly sets forth the judicial syllogism which is not same than form logic syllogism applying to simplicity in law field, but it is a methodology tool, which integrates the substantial contents of law, infers the judicial conclusion having the legitimacy and reasonableness.The first part, follows the understanding of the syllogism, to analyze the manifestation of and the foundational structure of the judicial syllogism, then proposed that the judgment of value is the important factor which cannot be removed using the judicial syllogism.The second part, firstly, analyses the intrinsic characteristics of value, explained what judgment of value is. In this foundation, expounds that judgment of value has carried out on the judge. Through understanding the objectivity and analyzing the objectivity of value, expounds that legislative purpose is the objective basis of judge's judgment of value. And then, analyses the factor which will affect a judge making a decision, including two kinds, one kind is normal and reasonable factors, another kind is non-normal and unreasonable factors. This paper pays attention to, when has removed the non-normal and the unreasonable factors, how the objectivity of the judgment of value is possible. Thereby, discusses that appeal to Judge's reason is conducive to understanding the legislative purpose, to provide the correct valuation criterion for the judgment of value, and to cut down the danger that the judge has when making a judgment of value possibly to the full.The third part, firstly, the paper defines what are major premise and minor premise of judiciary syllogism concept, and then, combining the related cases, this paper attempts to discuss the judgment of value is how effect in the process of constructing of judicial syllogism. Judge's purposes for inferring a reasonable and legitimate judicial decision while they using judicial syllogism. These need them building a major, minor premise reasonably. The judges building the process of the major premise, also is seeking a method of process called by the modern legal methodology. Finally, according to all above contents, this paper has summed up the effect ofjudgment of value in building the judicial syllogism.At last, this paper attempts to emphasize the judgment of value is very important in the process of constructing of judicial syllogism. At the same time, this paper also point out that judges ought to take seriously attitude in application of judicial syllogism, because the possibility of occurring danger while carrying on judgment of value.