Application Of Legal Rhetoric In Hard Cases

In recent years,the construction of the rule of law in China has made remarkable achievements,and the public's awareness of the rule of law has been increasing.This is mainly manifested in the increasing willingness of people to settle disputes through litigation,and the unprecedented attention of the public to hot cases.Judges,as special judicial adjudicators of the state,are responsible not only for the trial of specific cases,but also for the social function of realizing fairness and justice.Therefore,when dealing with specific cases,judges should not only strictly follow the legal norms to achieve the legitimacy of the verdict results,but also pay attention to analysis and demonstration in the reasoning process to achieve the rationality and acceptability of the verdict results.At the same time,with the complexity of social interests and the diversification of values,the number of difficult cases in the judicial field shows a rising trend.Judicial syllogism is a way of thinking that applies syllogism reasoning to the field of judicial practice.Although it plays an important role in strictly applying the law and preventing arbitrary judges,difficult cases are often a challenge to already typed cases.It is difficult to achieve case justice only by using judicial syllogism.In recent years,there have been many phenomena that judge's judgment theory lacks rationality and runs counter to social expectations,which illustrates the necessity of seeking other solutions.Rhetoric is a practical discipline,which often combines with other disciplines to play a more unique "charm",such as legal rhetoric.Legal Rhetoric Originated from court speeches and is the application of rhetoric in the field of law.Through Aristotle's study of rhetoric in Rhetoric,rhetoric has become a systematic and theoretical discipline.Although Legal Rhetoric went through a period of decline in the Middle Ages and the Renaissance,it regained its glory through the efforts of Toulmin,Perelman and others.Legal rhetoric naturally has two levels: one is speech skills,focusing on the use of skills in the process of persuasion;the other is argumentation methods,focusing on the emphasis on people and the pursuit of rationality and acceptability in the process of argumentation.It is not a one-way linear thinking,has no fixed form,and often implements persuasion in the open process.Therefore,legal rhetoric plays an important role in solving difficult cases,whether as a speech skill or a method of argumentation.Based on the analysis of judicial syllogism and other inadequacies,this paper expounds the basic theory of legal rhetoric,and analyses its advantages and usable space in difficult cases,in order to provide a way of Legal Rhetoric for solving difficult cases.It is divided into three parts:The first part raises questions.Although difficult cases have attracted much attention from all walks of life,judges may not be able to achieve the effect of persuasion even if they try their best to deal with them.Judicial syllogism and monologue approach can provide an effective way to solve simple cases,but they are still very difficult to solve difficult cases.This part mainly puts forward the necessity of using Legal Rhetoric in difficult cases.In the second part,this paper focuses on the connotation,theory of Legal Rhetoric and its compatibility with difficult cases.Legal rhetoric is the application of rhetoric in law.It has the characteristics of speech skills and argumentation methods.No matter which level of Legal Rhetoric is,it can provide more convincing way of thinking for the solution of difficult cases.In the theoretical part,the author focuses on Aristotle,Toulmin and Perelman's rhetoric theory.On the basis of elaborating the theory,the author analyses the advantages and feasibility of applying legal rhetoric to difficult cases.The third part is the focus of this article,mainly discussing the application of Legal Rhetoric in difficult cases.Legal rhetoric is widely used in difficult cases.From the field of application,it can be used in factual construction,legal application and mediation persuasion.From the nature,it can help judges solve difficult cases verbally and methodologically.This part of the author mainly through the form of case analysis.Of course,Legal Rhetoric is not omnipotent.Logic and law must be the premise in the application of legal rhetoric.Otherwise,it will not only fail to achieve case justice,but also may undermine the rule of law through abuse.