The Rhetoric Approach Of Legal Argumentation

Judicial syllogism is the specific legal practice of formal logic. It starts from the existing legal standard, abstracts the case fact into law fact, takes the artificial language as the media, and requests that the big and small premises should be identical, so as as possible to avoid the influence of value judgment on judicial decisions affect, eliminate and limit the judge’s unscrupulous judgment, thereby ensuring the objectivity and accuracy of the sentence. But this viewpoint can be challenged:in the same case, co-opetition exists in the major premise legal norm. Does the judge involve value judgment in choosing the norm? How can the law fact be infinitely close to the objective fact? Can the judicial judgment resorting to authority be widely accepted by the public? How can a judicial judgment which is not widely accepted ensure its effectiveness?Based on answering these questions, the advantage of argumentation is more and more apparent than that of proving and theories about legal argumentation are more and more enriched. According to the present results of academic research in various countries, it is believed that the accesses to legal research can fall into three categories:logic approach, rhetoric approach, and dialogue approach. Among them, the legal application of rhetoric approach takes the linguistics diversion of legal research as background. Scholars represented by Perelman and Toulmin reconstruct classical rhetoric tradition which has been downfallen since the Middle Ages and has established a systematic set of new rhetoric theories. As one of the argumentation approaches, rhetoric emphasizes the rational rather than irrational, and stresses the process of negotiation. Perelman’s new rhetoric theories take the audience theory as the core and consensus as the premise and starting point of argumentation, and put forward three main rhetoric argumentation methods: preliminary logical argumentation, argumentation based on the real structure, and argumentation which sets up a real structure. This paper firstly systematically expounds on legal argumentation theory and western rhetoric, especially the new rhetoric theory, and then lays emphasis on the discussion the "conjunction point" of rhetoric and argumentation. It puts more emphasis on the introduction to the approach of rhetoric argumentation and discusses the feasibility of the approach of rhetoric argumentation in legal argumentation from the perspective of methodology.In addition to the introduction part, the process of the discussion is divided into four parts:The first part "from judicial syllogism to legal argumentation":under the premise of acknowledging and dimidiating the norm, discuss the value and limitations and the rise and function of legal argumentation from a value-free perspective, put forward that the relation between "proving" and "argumentation" should be binary comparison. In judicial practice, syllogism is the main way of thinking when a judge makes judicial decisions, but at the same time, the rationality of involving value judgment is thoroughly argued. This argumentation is the not only a logic approach, but also an approach resorting to rhetoric and dialogue. Therefore, we try to construct an open argumentation system.The second part "the ’marriage’ of rhetoric and argumentation ":generally, rhetoric and logic and dialogue constitute three main argumentation approaches. At the same time, they are also the accesses to research in terms of methodology. This part firstly discusses the possibility of rhetoric argumentation, and then pays more emphasis on introducing the new rhetoric theories of Perelman, including the audience theory, the consensus view and argumentation approach on the basis of systematically expounding on western rhetoric. It is the core of this paper. At the same time, the rhetoric argumentation as a theoretical existence inevitably has its own boundaries and limitations. We acknowledge the possibility of taking rhetoric as an argumentation approach, but cannot avoid criticism on rhetoric theories.The third part " the value and limitations of rhetoric to the theory of legal argumentation":This part is from a macro perspective, focuses on the positive significance of introducing the rhetorical argumentation into the legal argumentation. For example, the rational boundaries are expanded, including ensuring the reasonability of legal interpretation and judicial judgment and providing method for value judgments, etc. Meanwhile, rhetorical argumentation as a theoretical existence has its own boundaries and limitations. We acknowledge the possibility of taking rhetoric as an argumentation approach, but cannot avoid criticism on rhetoric theories.The fourth part "forward-looking thinking about rhetoric argumentation":both western formalistic logic reasoning and legal argumentation will face "localization" problem in the legal practice in our country. This part focuses on the possibility of rhetoric argumentation in legal practice in China, and the new perspective brought about by rhetorical argumentation to the existing judicial system in China, such as the conjunction of consensus view and the traditional judicial ethics, the function as a bridge between national law and folk law.