Font Size: a A A

The Research Of Acceptability In The Sphere Of Legal Argumentation

Posted on:2016-10-07Degree:MasterType:Thesis
Country:ChinaCandidate:J W ZhangFull Text:PDF
GTID:2296330461958795Subject:Law of logic
Abstract/Summary:PDF Full Text Request
Legal argumentation has always been the object of research in the field of legal logic. Thanks to the efforts of many Chinese and foreign scholars, legal argumentation theories have been fully studied and developed.However,the appearance of Münchhausen triple dilemma has hada great impact in legal argumentation.In case legal argumentation into this dilemma, we need to find a new evaluation standard for legal argumentation. After a detailed study of the acceptability theory,the author thinks that the acceptability is able to overcome the difficulty coming from the triple dilemma. Thus, the acceptabilitycan be the new evaluation standard. Therefore, the author takes this thesis to demonstrate the rationality and feasibility of the acceptability as evaluation standardfor legal argumentation.In the first part, the author has analyzed the basic theoryin terms of legal argumentation. Firstly, taking thedialectic as a starting point for the discussion of the legal argumentation, through the analysis of basic characters of argumentation,the authorhasfound out some similar innate charactersboth in the general argumentation and in the special legal argumentation. Secondly, the specific characters existing only in the legal argumentation are respectively studied and analyzed from different legalandvaluable perspectives, so that the author has a comprehensive knowledge of legal argumentation. Thirdly, reviewing the development of ancient Greek argumentation, ancient India Hetuvidya, and China’s ancient Mohism, then connecting the advanced law idea in the modern society, it’s obvious that legal argumentation as a new branch emerges. That indicates the close relationship between the legal dialectic and the society ruled by legal institution.Proof and refutation as two dynamic forms of legal argumentation are analyzed at the end of this part.The acceptability problems are mainly discussed and demonstrated in the second part. At the beginning, based on researches and studies of other Chinese and foreign scholars,the author has sorted out the acceptability theories and their historical developments and clarified how the acceptability problems come into being. From the audience theory,this thesis has discussedthe essence of the acceptability. On that basis andfrom the judiciary aspect, with legal theory and specific legal provisions as examples, the acceptability in justice has been thoroughly defined. Moreover,by thinking of the famous Münchhausen triple dilemma,the current dilemma existing in legal argumentation has been pointed out and analyzed in detail from three aspects. In the end of this part, the tentative initial ideas have been put forward to solve the current legal argumentation dilemma.The third part focuses on the acceptability and on the basis of the results and analysisfrom the second part this thesis regards the acceptability as the evaluation standard, thereby finding a new solution to the legal argumentation dilemma. First of all, the author has studied the relationship between the social functions of law and the acceptability and has discussed the innate connections between them. The legal argumentation with acceptability as its evaluation standard can fulfill and achievethe current social functions of law. What’s more, considering the practice, it has been proved that the acceptability as a standard for legal argumentation also feasible and debate participantscan more easilyget recognition. Finally, the analysis of the main characters of the legal argumentation objects proves the rationality of the acceptability as an evaluation standard.The demonstrations from three different dimensions prove that the acceptability as the evaluation standard for legal argumentation is feasible.And illustrated how the legal argumentation with the acceptability as evaluation standard influence and changethe legal argumentation theory and judicialpractice.The acceptabilityas a new standard replaces the certainty standard.This replacement can not only avoid the legal dilemma, but also bring a lot of positive significance to the current judicial practice.
Keywords/Search Tags:Dialectics, Legal dialectic, Acceptability, Evaluation standard
PDF Full Text Request
Related items