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Research On The Pragmatism Consequentialist Arguments In Judicial Adjudication

Posted on:2021-05-31Degree:MasterType:Thesis
Country:ChinaCandidate:K ShenFull Text:PDF
GTID:2416330623478166Subject:Legal theory
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With the continuous enrichment and development of social life and the popularity of people's increasingly pluralistic values,more and more hard cases have emerged in the process of judicial adjudication.In these hard cases,judges often fail to obtain a proper decision directly from the existing rule system.In hard cases,the necessary rules of deductive justification can be obtained just by the Judge's interpretation of the law.Concerning the issue of how to interpret the law,consequentialist arguments has entered the vision of researchers as a method of legal reasoning.However,as to what kind of role consequentialist arguments should play in judicial adjudication,and how judges should use this adjudication method,different researchers have different views on this,and the discussions of these issues is often controversial.Mc Cormick's theory of the justification of legal decisions provides an analytical framework for us to understand the role played by consequentialist arguments in the process of legal reasoning.He divided the proof of the legitimacy of a judicial decision into two levels,deductive justification and second-order justification.Deductive justification refers to legal reasoning based on valid rules.In hard cases,since there are always situations where a judge needs to explain or create a rule,a second-order justification of the rule is required.Mc Cormick believes that the second-order justification includes the consequentialist arguments and the requirement of coherence.By combing the opposing views of researchers,it can be found that the differences between the two sides mainly occur in the field of the requirement of coherence.Only from the interpretation of the law can it be confirmed what kind of consequence considerations are legitimate.The stance of pragmatic consequentialist arguments does not object to the requirement of coherence of the consequences,but it does not think that the requirement of coherence can show what kind of consequences are justified.Therefore,it is still necessary to make decisions based on the consideration of consequences.Through further discussion,it can be found that the normative consequentialist arguments adheres to the idea of obtaining the only positive solution in the legal system through the method of hermeneutics.This position holds that judges can only have a "weak discretion" in hard cases.However,due to pragmatism differences in hard cases,this pursuit of legal determinacy is often difficult to achieve.Therefore,in the face of pragmatism differences,the consequentialist arguments can only be pragmatic.Since the pragmatism consequentialist arguments is necessarily accompanied by the discretion of the judge,the pursuit of legal determinacy should shift to the pursuit of legal objectivity.We should pursue the objectivity of the adjudication to prevent the judicial decisions in difficult cases from falling into a thorough subjectivism and legal nihilism.With the help of the framework established by Posner,we have found two ways to obtain objectivity in practice.One is the objectivity obtained through social science law,and the other is the objectivity obtained through dialogue.Due to the existence of pragmatism differences,only the objectivity obtained through dialogue is generally available.Starting from the discussion of objectivity,the constraint on the consequentialist arguments should be a combination of internal and external constraints.Institutionalized judicial practice and the reasoning of adjudication documents can become concrete ways of external constraints.
Keywords/Search Tags:consequentialist arguments, the requirement of coherence, the determinacy of law, the objectivity of law, external constraints
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