Research On McCormick's Theory Of Legal Reasoning

When studying Mc Cormick’s theory of legal reasoning,we must first understand what his basic position is.Only by understanding Mc Cormick’s main viewpoint and basic position can we have a deeper understanding of his follow-up thoughts.Mc Cormick made his own point of view on the relationship between legal reasoning and practical reasoning,and considered it to be a concrete manifestation of practical reasoning,and this was his most basic position in developing legal reasoning theory.Mc Cormick added a lot of non-deductive factors to his legal reasoning theory,and emphasized practical reason and the rule of thumb.However,Mc Cormick still regards deductive reasoning and judicial syllogism as law.The core of reasoning.Another major standpoint of Mc Cormick is his analysis from the perspective of positivism.During the formation of Mc Cormick’s theory of legal reasoning,with the long collision and confrontation between positivism and other legal schools,the most intense and exciting is the long between Hart and the new natural law school Dworkin.For 30 years of debate,Mc Cormick,as a student of Hart,also absorbed part of Dworkin’s point of view,and his positivism gradually developed in this environment.Mc Cormick later distinguished from Raz,who was also a Hart student.Mc Cormick proposed and developed institutional positivist jurisprudence.These are Mc Cormick’s three larger positions,and then the three propositions that he defends are expressed in Section IV of Chapter I.1.There is a certain connection between the theory of law and the theory of legal argument.,There is some conceptual quality between the two.2.Legal principles are a reason for legal reasoning.3.There is an analogy worthy of attention in the justification of the judgment result and the scientific hypothesis.The discussion of three major positions and three small positions makes Mc Cormick’s position more complete.The emergence of an idea must necessarily be developed on the basis of other theories,and Mc Cormick is no exception.The three basic theories of Mc Cormick’s theory of legal reasoning are,first,practical rationality.As the most basic idea of legal reasoning,it first needs to be explained,and then the theory of institutional law and Perelman’s new rhetoric are studied.The formation and development of Cormick’s legal reasoning theory has played a strong support.The core of Mc Cormick’s theory of legal reasoning is deductive reasoning and second-order justification.Regarding simple cases and difficult cases,Hart made a distinction at the earliest.Mc Cormick put forward his own standards on the basis of it,and then conducted a comparative analysis with deductive reasoning and second-order justification according to the types of cases.Although Mc Cormick also believes that deductive reasoning is still at the core of legal reasoning,the theoretical innovation is the introduction of second-order justification,because the introduction of second-order justification has formed Mc Cormick’s method for the settlement of difficult cases.The second-order justification method of consequence theory,consistency argument and coherence argument play the role of each other and complement each other to form the main part of Mc Cormick’s theory of legal reasoning.Through the study of Mc Cormick’s theory of legal reasoning,it is found that three issues are worthy of further investigation.The first is the issue of discretion.Many scholars in the academic field believe that the non-deductive factors introduced by Mc Cormick have expanded discretion.This article will analyze Mc Cormick’s legal reasoning theory on discretion.The role of the right.First explore the inherent characteristics of discretion,and then express its influence from Mc Cormick’s legal reasoning.Mc Cormick’s introduction of non-deductive factors in the second-order justification,although it expands discretion,also restricts it,and is not arbitrary.Relative to legal realism,the discretion of judges has been greatly restricted.But from another perspective,it has been expanded relative to absolute formalistic reasoning.In this article,the judicial decision obtained by legal reasoning is always a collision between two or more values.It is difficult to say that a complete and optimal solution can be found.It can be said that Mc Cormick’s legal reasoning theory is solving the value.When choosing a question,you can find the most suitable at this stage.The second problem is the uncertainty of the legal result,which is due to the introduction of non-deductive factors and the deficiencies inherent in second-order justification.This article also elaborates in detail.The last one is Mc Cormick’s efforts on the coordination between formal reasoning and substantial reasoning.Mc Cormick insists on practical reasoning,but still uses deductive reasoning as the core.The combination of deductive and non-deductive factors constitutes his own legal reasoning philosophy,which reflects Mc Cormick’s relationship between form and substance.Thinking.This article also hopes that through the study of Mc Cormick’s legal reasoning concept,it can make its own modest contribution to the development of China’s current rule of law cause.