Thinking Of Judges And Judicial Syllogism

Legal thinking, which is linked with particular profession, is also a unique way of thinking formed by legal community through legal education and practical experience. Judge, who exercises the national jurisdiction, is also the symbol of equity and justice. The typical thinking in the legal thinking is judge thinking. Judge thinking has typical characteristics such as legitimacy, neutrality, procedure and complexity. Every characteristic of judge thinking is different from the thinking of the audience. Judge thinking is the base on which judge exercises his jurisdiction. Based on these characteristics, judicial syllogism--the common thinking of judge cannot satisfy the need of judge thinking, and cannot satisfy the changing requirement of the society ruled by law. The reasoning mode of judicial syllogism whose function cannot be ignored is the typical way of judge thinking. But its shortcomings such as vulnerability in premise and unclear facts in minor premise may cause the judge cannot make a judgment. Therefore, the judge should considerate many factors during the trial of the case. Law is from society and the society life is complex, so the lag of law may cause the judge has no law to rely on. This is conflicted with the legitimacy of judge thinking. The judge needs to improve his accomplishment of law and the knowledge of law and refer to other way of trail so as to solve the confliction, achieve the justice and make achievement for society.The first part of this article discusses different characteristics between judge thinking as the typical legal thinking and the audience thinking. In order to understand the judge thinking better, this article analysis the legal thinking and the diversification characteristic of the legal thinking research from the prospective of the legal profession. The specificity of the legal profession cause the unique way of thinking of this group. Legal thinking can be divided into the legislative thinking, the judiciary thinking, law enforcement thinking and the thinking of law followers. The judge thinking belongs to the judiciary thinking. The identity and the responsibility of the judge determine the neutral position of the judge so as to solve confliction of two parties and promote the equity and stability of society. So judge which is different from the audience thinking has characteristics such as legitimacy,neutrality, procedure and complexity. The improvement of the judge thinking is the important part of the construction of the society ruled by law.The second part of this article discusses judicial syllogism--the typical judge thinking. We know that the judicial syllogism play a major role during the trail of the judge through the study in the first part of this article. Aristotle is called the originator of the syllogism thinking. His syllogism has been studied ever since from its appearance. Because syllogism is the source of judicial syllogism, judicial syllogism should also comply with the reasoning rule of syllogism. The judicial syllogism as the trail mode of the judge is unique. It can improve the efficiency of the trail and restrict the arbitrariness of the judge. This thinking mode is favored by the judge, but it's not perfect with some shortcomings. These shortcomings is conflicted with the characteristic of judge thinking, so it need other ways of thinking to make up the shortage of the judicial syllogism so as to improve the judge thinking.The third part of this article is about the measures of perfecting the legal thinking. After analyzing the characteristics of the judge thinking and the mode of the judge thing, as we can see, the judicial syllogism cannot satisfy the need of the judge thinking, and cannot ensure the force of law and the unity of social consequence. Hence, this article suggests on how to perfect the judge thinking from the perspective of technology of trial, the quality of the judge and the trail experience so as to make the judge not restrict the trial mode of syllogism and achieve the equality and efficiency of judgment. In addition to the deductive reasoning, the trial experiences such as case law of other countries also provide reference for the judge thinking. That is complied with the complexity of the judge thinking, which is also affected by the factor of the judge himself. Therefore, to start with training accomplishment and improving thinking level of everyone will maintain the society ruled by law.