The Legal Application Of Analogy

How to provide the judgments of analogy with the rational state has always been a problem that plagued our theoretical and practical circles.To clarify the problem,it is necessary to divide it into two sub-problems,namely,ascertaining the appropriate comparing point and choosing the decisive one among serval correlative decided cases.However,there is a more profound question about the valuable judgment hidden behind the two questions.In the theoretical circle there are three representative approaches.Traditional methodology approach is tried to use all sorts of legal interpretation methods to seek objective valuable judgement conclusion.Hermeneutic approach is attempted to realize the goal of seeking objective value by reflective equilibrium.Argumentation theory approach is tried to through the theory of procedural argumentation achieve the goal.In the above three kinds of research approach,the traditional methodology approach and hermeneutic approach will inevitably incur the blame of uncertainty.The reason is that the current legal system cannot provide a complete,absolute sequence of value status,and for the specific content and competent of the relevant values not being determined by a variety of legal interpretation methods and reflective equilibrium.So the judgement will inevitably be subject to arbitrary decisions.The procedural rationality based on the popular consultation tries to put relatively substantive valuable proposition in rational argumentation process,the argument negotiated between the participants provides valuable judgment conclusion with rational justification.