The Application Of Legal Rhetoric In Judicial Process

Rhetoric is a way of persuading people through discourse,not just linguistic skills that make sentences good,but also includes rhetorical reasoning as a plausible reasoning.The use of negative rhetoric in the legislative and judicial process satisfies the concise and definitive requirements of the legal language,and active rhetoric is used as a method to evoke the emotional resonance of the audience to a certain extent,which is conducive to enhancing the persuasiveness of the judgment,but it needs to be emphasized that When using positive rhetoric,caution should be exercised within the framework of legal procedures to avoid the abuse of positive rhetorical methods to eliminate the rule of law.Legal rhetoric is also the method of argumentation of probabilistic reasoning,and it pays much attention to the persuasiveness in the process of reasoning.Unlike rational legal logic methods,legal rhetoric embodies the humanistic spirit in legal activities.Some scholars believe that the use of legal rhetoric will undermine the certainty of the law and thus criticize the legal rhetoric.But understanding rhetoric as the use of modifiers or just the use of positive rhetoric is a misunderstanding of rhetoric.The use of legal rhetoric,especially negative rhetoric,can make the language clearer and more explicit.On the other hand,the rhetoric argument method focuses on inter-subject interaction,refutation,communication,and persuasion.This is consistent with the requirements of the rule of law.Legal rhetoric can be used properly.Greatly improve the acceptability of judicial decisions.Judging from the perspective of justice,the entire process of the first instance and second instance of the case was reviewed.The method of argumentation of the two judgments was analyzed.We can see that the verdict of the first instance verdict was lacking,the machinery was judicial,and the gap between the size of the premise convergence was not well integrated.The result of the final judgment appears to be lawful but unreasonable.In the second instance,the two methods of argumentation using both rhetoric and logic were used to explain the reasoning.It was ingenious and the persuasiveness of judicial decisions was greatly enhanced.The structure of this article is divided into six parts:The first part clarifies the two levels of legal rhetoric.It points out that legal rhetoric refers to both the technique of speech and the method of argumentation of probabilistic reasoning.It is distinguished from the legal logic,but it is closely related;The second and third parts focused on dismantling and analyzing the two judgments of the first instance and the second instance of the case.They pointed out the dilemma of judgement between law and emotion in the case of YuHuan.It was inspired by the case of YuHuan's second-instance judgment and made it clear that legal rhetoric plays the role of complementary method when the logic is not in place.The fourth part discusses the function and status of legal rhetoric as a method of persuasion under the background of modern rule by law;the rule by law requires that the court and the parties have an equal status,conduct equal information exchanges between parties,and then persuade,and Perelman's new rhetoric emphasizes the interaction between the subjects.The combination of the new rhetoric and the law has its inherent consistency.Second,there will be some gaps between the convergence of norms and facts,and the legal logic cannot solve the problem of the convergence of the size of the premise.The fifth part reaffirms the limits of the application of legal rhetoric,emphasizes that excessive rhetoric will eliminate the rule by law,and the use of irrational factors such as intuition and emotion in the judicial process should be based on logical value judgments.At the same time,the adjudication of adjudication and reasoning is a requirement to maintain the intrinsic coordination of the legal system.The production of qualified rhetoric arguments cannot conflict with other legal rules and legal principles.It is necessary to take into account the sentiment,jurisprudence and affair when making judgments.Unity and coherence,thus restricting the use of legal rhetoric to a certain extent.The sixth part is an epilogue that summarizes the point of view of this article.