The Rational Construction Of Legal Reasoning

In contemporary society, the law has become the main rules of adjusting people’sbehavior. The so-called "rule of law" is refers to the governance of the country inaccordance with the law governing the concept, the concept means that we need not only touse rules to safeguard social stability, the rule and need to limit the exercise of power, at thesame time make the power system to effective operation of the cage. However, people tendto care about how to develop the perfect laws and ignored the laws apply, the former is thepremise of the rule of law, the latter is the realization process of the rule of law. Inphilosopher’s view, the judge from an unknown pending there case to known, from theinitial perceptual knowledge to the rational analysis of the application of law, so it is also akind of understanding activity, is worth us to analysis. In view of this, the applicable law asan important link in the process of legal reasoning become modern especially concern andresearch hotspot in jurisprudence of law, and the discussion of legal reasoning has neverstopped since the birth of law, legal reasoning is a bridge to communicate abstract law andsocial reality.Cases of legal reasoning process as an important link in the process of judicial decision,the rationality and justice of judicial decision in play a key role, especially in difficult cases,legal reasoning process and its results on the application of the law is indispensable. But inour country’s judicial judgment, the judge is rarely of a case reasoning process in detail, andeven some judges do not know what is a legal reasoning, only mechanical of the syllogism,and don’t care about the complexity of case’s reasons. Due to the absence of legal reasoningin judicial decisions of thinking, the author studied thoughts embodied by Neil McCormicklegal reasoning theory book legal reasoning and legal theory, he thought, the judge afterrational thinking when the verdict is one of the most important thing is that selection rulesmade by legal reasoning, has legitimacy. Traditional legal reasoning is often people simply considered deductive reasoning, and deductive reasoning is not entirely sui generis, justifymode of legal argumentation, in the process of argumentation, the content it containsdifferent principles and values. Nevertheless, McCormick still put based on the rules ofdeductive reasoning centre to interpret them. In difficult cases, based on the role of the rulesof deductive reasoning is limited, because in the face of difficult cases, the judges for someare fuzzy rules in explanation in order to determine a specific rules to solve the problem,tend to have different points of view; Also, some of the case facts is not clear, need judgesare classified to determine which is the fact that effective facts required by the questionbelongs to the rules, and often controversial; In the end, when there is a new case fact,namely law did not respond to standard also without precedent give guidance, thus for newcases, the judges are hard to come to an agreement. All in all, with the interpretation of thefuzzy rules, effective classification to the case facts, the problem such as the specific case toseek the rules and precedents, in difficult cases are produced in the process of legalreasoning to solve the problem. The reasonable construction and legal reasoning is theentire content of the detailed study of legal reasoning must focus on the theme. This paperhope through to these topics, the legal reasoning enables readers to have a more clear anddefinite. McCormick taken by way of discussion is also very close to our daily life. Casetaken in this book are mostly derived from court, especially the real debate of the court ofEngland and Scotland, but these arguments contain what we really need to discuss problems,and is a basic problem, we need to think deeply about these problems is to judge the logicalthinking and reasoning process of specific cases, and these problems are often treated asdetails and ignored. McCormick often quote the real cases, and the judge was proposed andan argument in the specific reasoning ways, namely "reasonable reconstruction", because hewill be restricted to explore practical reason and the scope of human nature, thusMcCormick’s argument is not only a description of the "reality", but also trying to rationalthinking and behavior of the system show the colorful reality. In a nutshell, McCormick’stheory of legal reasoning on our country’s judicial practice and judicial...