The Approaches Of Justification Of The Judicial Decision

Since the1970s, the theory of legal argumentation has started to develop. There are a variety of research approaches for it. These approaches can be divided into three kinds:logical approach, rhetorical approach and dialogic approach. This paper discusses theses three approaches from the following aspects:the basic theory, characteristic, value and limitation, with the purposes of having a more clear understanding of them.This paper has five parts. The first part discussed the justification of the judicial decision from the following two aspects:the meaning and the classification of the approaches. The theory of the justification of the judicial decision is one of the core contents of the theory of legal argumentation. The justification of the judicial decision refers to the context of justification rather than the context of discovery. For the legal conclusion, what the justification of the judicial decision focus on is rationality.The second part of the paper discussed the formal logical approach. Logical approach has three characteristics:using symbolic language, focusing on formal validity and widely used in legal argumentation. Then the paper discussed the value and limitation of the logical approach, pointing out the logical approach is a necessary condition but not a sufficient condition for legal argumentation.The third part of the paper discussed the rhetorical approach. Rhetorical approach of the theory of legal argumentation mainly includes three basic theories:Perelman’s new rhetoric, Toulmin’s model and viehweg’s topic. The characteristics of rhetorical approach are:Considering legal logic as informal logic, focusing on persuasion, field dependent and attaching importance to audience. Then the paper discussed the value and limitation of the rhetorical approach.The fourth part of the paper discussed the dialogic approach. In this part, the paper mainly discussed Robert Alexy’s theory of legal argumentation, the representative theory of this approach. The characteristics of dialogic approach are:in pursuit of certainty, attaching importance to procedure, distinguishing between internal justification and external justification and based on ideal speech situation. Then the paper discussed the value and limitation of the dialogic approach.In conclusion, the paper discussed the relationship of these three approaches, pointing out that they should become complementary rather than mutually exclusive.