In The View Of The New Rhetoric Of Legal Argument

The research of the theory of legal argumentation arises from the ascent of the non-forrnal logical movement in the worldwide in 20th century. It developed quickly and has obtained the important status in the European and American academia in the recent 40 years. It has had many different kinds of research techniques but hasn't form the unified system so far, because its content involves the logic, the rhetoric, the jurisprudence, the philosophy, etc. on many different disciplines.In the research of the jurisprudence, the life is diverse and the law often displays palely and weakly, which causes the scholars and the populace questioned the lofty status of the law in the social life unceasingly, and the realism jurisprudence advanced this kind of tendency mostly. The rigor of the law has the aspect which the strength has falls short, does not have the logical true value from the article to the decision process to judicial practice frequently. If the law must display the control action which relates to the society truly, it must convince the people the not only real process and the conclusion, and the basic ideas of the rule of the law in modem times also requests judges certificate to make behind the decision to have the appropriate reasons but non-willfully to make an arbitrary decision. The theory of legal argumentation arises at the historical moment.The research of the theory of legal argumentation starts lately in China. The scholars are engaged in translating and introducing the overseas correlation work mainly, and the work is at the starting stage to the theory of legal argumentation itself. The research techniques obviously come under the overseas influence. At present, it has mainly three methods to the research, and the new rhetoric which was proposed by Perelman is the important content in the rhetoric method. The theory restored the rhetoric's original appearance through rediscovering the tradition of Aristotle's rhetoric, and the theory essence which its attention argumentation and persuasion transplants to the process of the research of the legal argumentation, and it takes to prove the different linguistic environment function as well as audience's response in the process, and it emphasizes the acceptability of the judgment and the process.This dissertation analyzed the basic concept and the research present situation of the theory of legal argumentation, and studied the origin and the evolution of the new rhetoric, and analyzed the justice theory and the audience theory emphatically. It also discussed the functions of the new rhetoric in the moving process of legal argumentation from the angle of the methodology.Except the introduction, the full text divides into four parts, including the outline of legal argumentation, the outline of the new rhetoric, the analysis to legal argumentation in the new rhetoric, the conclusion and so on.The introduction has first analyzed the thought and the social background which the theory of legal argumentation emerges, then introduced the main content and the research techniques of the theory, and have carried on the brief narration to the domestic and foreign research present situation, thus drew out the legal argumentation in the new rhetoric, which was the research technique that had emphatically to elaborate by this dissertation.The first part carries on the introduction and the discussion on the theory of legal argumentation itself, including the general theory about argumentation, the analysis to the concept and the characteristics of legal argumentation, the significance and research techniques of legal argumentation. The second part has first analyzed the development path of rhetoric, then changes over to the Perelman's new rhetoric research, which mainly includes the justice theory and the audience theory. The third part has studied the applications of the legal argumentation in the new rhetoric. The conclusion elaborated the new rhetoric's flaws as a theory.