The Significance Of Public Opinions In Legal Argumentation In Hard Cases

Hard cases remark the limitation of formalism in judicial practice and the gap between modern law and Chinese traditional Qing(human sentiment)-Li(reason).In the age of new media,people pay more attention to justice than before so the judgement in hard cases often causes public controversy.The appearance of public opinions is the controversy of the majority.In essence,it represents the propositions of different social groups to dispute the interests in a case and those propositions can be based on norms besides the law.The significance of public opinions in the legitimacy of judgement in hard cases can be recognized from two aspects.First is the form.The opinions favored by the majority carry the value of democracy so the relationship between public opinions and legitimacy of judgement must be related to democracy.In addition,judgement plays the role of dialog between the judges and public audience which means audience controversy may lead into a higher burden of argumentation.Second is the essence.The community interest embodied in public opinions is closely related to the greatest well-being of society as a whole.The normative propositions contained by public opinions actually affect the self-identity or value identity among members of the community which can't be ignored in hard cases.On the legal discovery and argumentation in the process of hard case judgement,the judge can adopt “topic” orientation thinking model and “dialog” argumentation model.By that the judge may find out what should be the highlight of his argumentation and make the judgement more easily accepted by audience.