The Dilemma Of Subsumtion

As a traditional legal application’s mode, the subsumtion introduces a formal andfixed procedure to legal application, meanwhile, and plays a dominant role for makinga decision of one case in the age of legal syllogism. With the high-speed economicdevelopment of our society and the more complex relationship between people, avariety of disputes have presented the complicated tendency, and consequently themany hard cases increased. So the subsumtion mode has been unable to fit this requestdue to the flaws itself, namely that the subsumtion mode can not solve the valuableconsideration in specific cases.This article will explain what the subsumtion is and then discuss why theapplication of the subsumtion mode would engender the dilemma of valuablejudgment in the specific cases. In the light of the subsumtion mode’s value judgmentproblems，on the basis of the real cases’ needs as well as the advanced system ofEurope and the United States’ judicial practice, the essay will put forward somesuggestions to settle the dilemma, such as legal interpretation, analogy, judge-madelaw. The way will achieve the substantive justice of law requirements; truly protectthe fairness and justice of the case judgment by the combination of the newapproaches and subsumtion mode. The paper is mainly divided into three parts:The first part, It’s about what the subsumtion is, namely,that what theconnotation of the subsumtion is,and then discusses about the definition of some ofthe viewpoints of subsumtion, generalizes the general theory of subsumtionconnotation, analyses the structure of the subsumtion mode. And then we will discussthe characteristics of subsumtion, and point out its shortcoming and advantage. Onthis basis briefly this paper introduced the relationship and distinction between thesubsumtion and other related concepts, such as deductive reasoning, legalargumentation.The second part is on the problem of subsumtion mode’s dilemma. Thesubsumtion mode has got a lot of criticisms in modern times, the main reason is that itcan’t not solve the valuable judgment in the legal application, which was consideredas the rigidity and unable to adapt to the modern complex legal practice’s demand.Then the paper will analyzed the relationship between the subsumtion mode and thevaluable judgment and why the dilemma of the subsumtion mode creates,i.e. the lack of the valuable judgment.The third part is about the solutions of the dilemma. On the basis of the analysisof the predicament of the application’s the subsumtion mode in difficult cases, thepaper will propose a interlocking way between the subsumtion mode and the valuablejudgment, i.e. to take the value judgment into subsumtion mode through the widelyexercised of the legal principle and legal interpretation to solve the problem of themajor premise of subsumtion mode. At the end, the paper will discuss that the analogyand the judge-made law can solve the dilemma of subsumtion mode to some extent.The article focused on the third part, i.e. the solutions of subsumtion mode valuejudgment missing. To counter the predicament that discussed in the second part, thispart will put forward the ways to resolve this dilemma by the analysis of the judgmentthe specific cases.