The Judicial Argumentation Of Emerging Rights

Along with the promotion of social change,we are enjoying a "right explosion" era,facing the complex "emerging rights" rights phenomenon.In the "emerging rights" rights phenomenon,emerging rights refer to specific rights that are present in different scenes and are evaluated for legitimacy after different right judgments about different right claims,the key is claims,judgments and scenes.In the judicial scene,the "legal norms" as a classification standard,the emerging rights cases can be divided into "clear law norms" emerging rights cases,"no clear law norms" emerging rights cases and "no law norms " emerging rights cases.The emerging right case in the judicial process which is filed by the right claimant can obtain legitimacy evaluation after the judge makes the right judgment.Standing on the position of the judge,"right(judicial)argumentation" constitutes the center of the judicial process of the emerging rights.Looking at the emerging right claims in the judicial process from the point of view of the judicial application of legal methods,it is concerned with which legal norms and how to apply legal norms in the current cases in order to produce legitimate,effective,and correct judicial decisions.And how to provide legitimacy evaluation for the emerging rights in the judicial process.From the perspective of theoretical research,we should look at the emerging right judicial argumentation research in the judicial process.We should pursue the “descriptive” theory at the legal method level,and pay attention to the applicable mode of the legal method of how emerging rights cases are demonstrated to make it universally applicable,not limited to case analysis.This resulted in a major theoretical problem: how to provide a set of theory with legitimacy and universally application for emerging rights cases in the judicial process.Based on MacComick's theory of the justification of legal decisions,on the one hand,"recognition","the preliminary judgment of the deductive justification","the pursuit of consistency and coherence","the evaluation of the consequentialist arguments" and "deductive justification" links together to build the applicable model of legal method about how emerging rights cases can be justified.On the other hand,with the social recognition of the status of the court,the social recognition of the judge's ability and the social recognition of the judicial application of legal methods,deductive justification can be formed based on the social recognition,and then we can provide a justification for emerging rights.In the theoretical framework of McCormick's theory of the justification of legal decisions,the deductive justification and the second-order justification together constitute the descriptive aspect of the judicial argumentation.Only the judicial argumentation which strictly abide by this process can become “effective” judicial argumentation.The judicial argumentation can be called "effective" forms the basis of the normative aspect of the judicial argumentation.The rights claims obtained through the judicial argumentation process with a normative role will be evaluated for legitimacy.The emerging rights in the judicial process through the judicial process of emerging rights,can be evaluated for legitimacy through the judicial argumentation.However,it is undeniable that the practical application of the judicial argumentation theory in the case of emerging rights requires special knowledge and needs to be handled in specific cases.Whether the judicial argumentation of emerging rights has operability in judicial practice or not,whether the judicial argumentation theory can be effectively translated from a theoretical statement to a specific judicial skill,requires the use of specific cases for the verification of the steps in the judicial argumentation of the emerging rights,otherwise it will be the existence of " useless ".