The Conversion Of Logic Basis For Legal Rationality

How to demonstrate the rationality of the method has always been an important r subject of legal theory. For the question, the jurists of the different periods provided different answers. In modern times, the positivist jurists insisted on the formal rationality of law. It was believed that the formal validity of legal reasoning was able to ensure the realization of the only correct answer. Therefore, they focused on the analysis of the internal logic of legal concepts and legal structure, and value judgments are excluded from the scope of the study of the jurisprudence. The legal pragmatism and Legal Realism ended this myth. Start from Holmes, the legal pragmatism criticized the point of formalism, which claimed Logic is the only power for the development of law. They emphasized the link between the legal and social interests and turned to concern about judicial process and pointed out that a legal judgment is a compound of a combination of factors, containing political factors, economic factors, psychological factors and so on. When pragmatism came to Posner, legal certainty and autonomy were totally smashed. Faced with this crisis, the theory of legal argumentation made a series of attempts to re-determine the legal certainty and rational basis. The theory of legal argumentation, based on linguistic turn and practical rationality, abandons the dichotomy of subject and object, observes legal activities with intersubjectivity thinking and dialogue thinking. They see judicial activities as a dialogue rather than a judge’s personal monologue and the dialogue must be under the guidance of practical reason. In a word, the theory of legal argumentation turns to pursue dialectical rationality instead of formal rationality. In the process of transition from formal rationality to the dialectical rationality, formal logic is no longer applicable but the new logical basis has not been established, a new logic basis is needed urgently. For this purpose,we must first change Logical concept in the past.Susan Flack’s logical revision theory cleared the theoretical obstacles of the conversion of our logical concept. We would say some logic is not apply for some reasoning rather than say it is wrong. Any logical potentially be corrected, the logical disciplines are also in constant change. Therefore, we should get rid of the superstitious with logic as well as change the concept of logic. To determine the logical basis for legal argumentation, non-formal logic is a good choice. Informal logic make everyday language argument as the research object, advocating the pragmatic and dialectic of argumentation, emphasizing the importance of the legitimate argument program and polemical rights. It is worth mentioning that informal logic is an integration of a variety of theoretical perspectives, on the other hand, legal argument has always been typical study object of informal logic. This demonstrates the feasibility of informal logic for legal argumentation and solve the problem solve the problem of the lack of a unified legal argumentation theory perspective as well. In a word, when we identify new logical basis for the rule of law, informal logic is a good choice.