Rhetorical Application In Judicial Adjudication

At present,the research on the application of rhetoric in judicial judgment is of great significance and value both in judicial practice and in legal theory exploration.The judicial judgment documents show how the judges use the rule of law thinking to solve the social disputes and conflicts,which is also the embodiment of the trial process of each specific case.As an art of speech practice in human society,rhetoric of law is an art of expression of speech in legal documents in judicial decisions.The correct use of legal rhetoric in judicial judgment can promote the audience's understanding,approval and acceptance of the result of judgment to some extent,which is beneficial to the maintenance of the authority of law.However,there has been the phenomenon of template and format in our judicial documents,and the use of legal rhetoric is not satisfactory.At present,formal logic as the main reasoning mode in judicial practice can not effectively solve some difficult and complex cases.As a legal methodology of Informal logic,legal rhetoric is helpful for judges to make formal legal and substantial reasonable judicial decisions on the basis of value judgment.The Informal logic has shown great vitality and vigor in the face of complex and difficult cases.Unlike syllogism,rhetorical argument does not use formal logic to force the audience to accept the conclusions of argument and reasoning.Based on the common sense of the audience and the opinions of the public,legal rhetoric makes rhetorical arguments and reasoning to resolve disputes and solve legal problems.However,in the course of investigation and research,it is found that the improper use of legal rhetoric techniques in some judgment documents has a bad effect on the acceptability and persuasiveness of legal documents.Legal rhetoric is not only the choice of words and sentences in legal language,but also the application of legal values such as legitimacy,rationality and legitimacy.In addition,we should rationally realize that everything has two sides.Although rhetoric has the positive function of persuasion and argument,we should also prevent and avoid rhetoric becoming the fig leaf of judicial corruption.This paper is based on the discovery of the problems in the use of rhetoric in judicial decisions-analysis of the problems-to propose solutions to the problem of the basic ideas of this paper.This paper discusses the use of rhetoric in judicial adjudication in four parts,it is divided into four parts: legal rhetoric and its significance to judicial judgment,the problems in the use of rhetoric in judicial judgment,the experience and enlightenment of the use of rhetoric in American judicial judgment,and the perfection of the use of rhetoric in judicial judgment.First of all,the author makes a basic outline and explanation of legal rhetoric from the concept,origin,historical development process and so on.Then the thesis theory,Toulmin's mode of debate theory,Grigori Perelman's new rhetoric theory,Burke's "identity" theory and other western rhetoric theories are introduced as the theoretical support of this paper.The correct use of legal rhetoric is of great value and significance in promoting the acceptability and rationality of judicial decisions,as well as the fairness,justice and credibility of judicial decisions.Secondly,it studies the deficiency,existing problems,causes and analysis of rhetoric in judicial adjudication in our country.The author expounds the problems of inadequate use of rhetorical reasoning and improper use of rhetorical skills in judicial adjudication in China,and analyzes the existing problems.Due to the lack of necessary innovative encouragement mechanism and the implementation of Standard Judgment Document format by the Supreme People's Court,the present rhetorical reasoning(default syllogism)is seldom used in judicial decision.As a very important part of rhetorical argumentation,rhetorical techniques,such as narrative cutting,emotional evocation,equivocation and intertextuality,have been used improperly in judicial judgment.Thirdly,we should draw on the experience and enlightenment of the rhetoric argumentation methods in American judicial judgment,such as rational argumentation,emotional argumentation and personality argumentation,so as to enhance the acceptability and predictability of our judicial judgment.The judicial judgment should improve the ability of the unity of the rational argument and the emotional argument,and the ability of the personality argument to improve the judicial credibility.Finally,the author puts forward some suggestions on how to perfect the use of rhetoric in judicial adjudication and how to prevent the abuse of rhetoric.Therefore,it isnecessary to apply rhetorical reasoning and rhetorical skills to improve the acceptability and predictability of judicial documents.At the same time,sticking to the judgment according to law and establishing the supervision mechanism of improper use of rhetoric in judicial judgment can effectively prevent the abuse of rhetoric.