Research On Mac Cormick’s Theory Of Legal Reasoning

Neil Mac Cormick believes that the process of legal reasoning in judicial judgment is actually the embodiment of practical reason in the legal field,which clarifies the role of non-deductive reasoning legal methods,such as inductive reasoning,moral reasoning,and so on,at the same time,it insists that the effects of non-deductive reasoning methods need to rely on deductive reasoning.This view shows the thought of Mac Cormick’s positivism.However,later the publication of H.L.A.hart also marks the entry of Mac Cormick’s positivism into the development of post-positivism.Specifically,Mac Cormick absorbed the essence of naturalism and positivism,clarified the connection between law and morality,established institutional positivism,and put forward the important conclusion that the essence of law is "institutional fact".Mac Cormick’s legal reasoning theory is also inspired by Perelman’s new rhetoric and introduces subjective judgment method of diverse values in the application of legal reasoning in judicial practice,which makes Mac Cormick develop persuasive second-order proof legal reasoning theory.And through the Mac Cormick second-order establish legal reasoning theory to comb,the system of law and the consequences argument and the logic of relations between the new rhetoric,and then clear the second-order will justify the practice principle of legal reasoning theory: the judge in the judicial practice of the rule which is the basis of the referee legitimation card into,at the same time to ensure that the ruling consequences acceptability.In particular,Mac Cormick clarified the position that legal reasoning belongs to the external manifestation of practical reason,and judicial syllogism deductive reasoning is the theoretical core of legal reasoning,but it needs a second-order proof legal reasoning method as the auxiliary demonstration,so as to maintain the basic status of deductive reasoning and realize judicial justice.Therefore,in the framework of Mac Cormick’s institutional jurisprudence theory,second-order vindication is actually an argumentation model with the characteristics of practical rationality that helps judges prove the legitimacy of the legal rules on which judicial decisions are based.Specific Mac Cormick in typical judicial cases under the Anglo-American law system,for example,due to the judicial syllogism as a logical form of deductive reasoning,there is the premise of basic reason cannot explain and have limitations in terms of the applicable scope,is the verdict that is a direct result of uncertainty,when using the second-order establish legal reasoning,The legitimacy of the rules based on judicial decisions is demonstrated,combined with rhetorical arguments to increase the persuasive acceptability of judgments.One of the key issues of second-order proof legal reasoning theory is the acceptability of judgment conclusions in the legal system.Mac Cormick chooses to apply the consequentialism argument to solve the problem and seek the acceptability proof of judicial rulings outside the framework of the legal system.The second issue that Mac Cormick focuses on is the specific basis of judicial decisions in the existing effective legal system,namely its justification argument.Mac Cormick insists on using the method of combining consistency argument with consistency argument to find the justification evidence in the legal system.To sum up,the application of second-order proof legal reasoning is conducive to making up for the deficiency of deductive reasoning,helping to maximize its role,ensuring legal certainty,and maintaining legal authority.In the analysis of consequentialism,consistency,and coherence,as well as the relationship among the three elements,the paper also reflects on the uncertainty of second-order proof legal reasoning theory.For example,in judicial trials,it is easy for judges to arbitrarily exercise their discretion in dealing with difficult cases,and the argumentation of consequentialism is the choice of judges for the application of different rules and regulations on the surface.However,this actually involves subjective value judgment,that is,the dilemma of uncertain judgment conclusion.At the same time,it also means that how to achieve a harmonious relationship between substantive reasoning and formal reasoning.In a word,the traditional legal reasoning model should be changed,and the judicial trial position of combining deductive reasoning with second-order proof reasoning should be adhered to,so as to provide mode and theoretical guidance for judges to justify their judgment conclusions and realize judicial justice.In the related literature view legal reasoning and Mc Cormick,after combing through the understanding of theory of law philosophy of positivism and utilitarianism,the consequences,such as the new rhetoric theory foundation,as well as the cognizance of the hard case,deductive reasoning limitations such as reality basis,for the Mc Cormick legal reasoning theory of comprehensive control and development;The paper also discusses the uniqueness of Mc Cormick’s legal reasoning theory,that is,the characteristics of practical rationality.And Mc Cormick legal reasoning theory in the application of hard cases,embodies in its second order establish legal reasoning theory,based on the second-order establish legal reasoning in judicial practice of the three elements of theory consequences socialist argument,consistency,demonstration and standard respectively expounds integrating inertial argument,to clarify the legal reasoning specific path;Finally,the author makes an analysis of Mc Cormick’s theory of legal reasoning,pointing out that it helps to make up for the defects of legal interpretation,has prominent advantages in promoting the acceptability of judicial judgment and the coordination between form and substance,and reflects on the uncertainty of his theory.It also discusses the legal philosophy significance of Mc Cormick’s legal reasoning theory from three angles of promoting positivist legal theory and influencing western judicial philosophy and practice,and combines the enlightenment of Mc Cormick’s legal reasoning theory to China’s judicial practice,expecting to be beneficial to China’s current judicial reform.