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Judicial Reason in Legal Reasoning

Author: LiuYan
Tutor: ZhengChengLiang
School: Jilin University
Course: Legal Theory
Keywords: judicial reason legal reasoning reason practical reason logic consistency
CLC: D916
Type: PhD thesis
Year: 2008
Downloads: 554
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Abstract


Reason is one of the key words in the field of philosophy, which has been facing the transition from metaphysics to practice and starts to exert its influences upon the practical social life. Reason is taken as a fundamental theoretical premise in legal researches, which is even broadened by the practical view of the Marxism. This thesis takes the practical reason of Marxism as the philosophical foundation, adopts other views of properness critically and explores the judicial reason in judicial practice i.e. the judicial analogy, which is unfolded in the different layer of practice and theory. The thesis contains seven chapters which respectively focus on the development of reason, the definition and standards of judicial reason, the relations between the judicial reason and logic, the two major practices of judicial reason and the core of judicial reason i.e. the issue of certainty.Chapter one is a historical survey of the development of judicial reason. The concept of reason starts with ancient Greek Heraclitus’ theory of logos the two aspects which contains are objective laws and subjective rational thinking. Another etymological origin of reason is the Greek word nous whose exact meaning is the whole understanding of a situation which is suddenly acquired through watching. Firstly, ancient view of reason is closely related with the theories of the very origin of the universe, reason bears a clear tendency toward ontology. Logos is narrowed down to formal logic by Aristotle, reason as a reflective competence is generally taken as a concept ional analogical competence. Thereafter logic acquires a universal approval as a fundamental element of reason. Secondly, with the development of modern science, cognitive reason with the core of humanism starts to burgeon. Galileo proposes the idea of regulating the rules of nature (logos) by mathematic method, which paves the way for modern metaphysics. Cant believes in one reason, i.e. the pure reason, which exemplifies itself in different fields: "what I can know" in theoretical reason and "what should I do" in practical reason, the ultimate goal of reason is the reproduction of der gute Wille. Hegel puts forward the absolute mind (reason), the thoughts of dialectic reason of which exerts direct influences upon Marx’ dialectic cognition. Marx Webber analyses the issue of rationality on the basis of scientism, his formal rationality has a great influence in the judicial scope. The 18th century thus is termed as "a century of reason". Postmodernism find new reasonable spiritual foundation of the meaning of existence of human being ,they give a new angle of view to the traditional standpoint of reason. Thirdly, Marxism practical reason marks the new height of human cognition. Marx believes reason is practical, is the subjective competence acquired through the long-term practice of the subject, the practice is the practice of reason. The nature of man is not the abstract inherency but a sum of all the social relations in its realistic aspect, reason and practice are in a dialectical relation.Chapter two defines the reason and gives a creative semantic analysis to it: firstly, the judge’s reason. Firstly, the process of transition from reason to judicial reason is analyzed. The issue of reason is always related with the issue of truth; in a general sense reason is considered as a endowed competence of thinking and judgment, which is a reflection of human capability of knowing the discipline. The philosophy of law bears the influences of philosophy, therefore, reason is also a central issue in the field of philosophy of law. The school of institutional law makes the practical reason a basic direction of research, "reasonable man" among many theories has been a fundamental premise. There is no essential difference between practical reason and reason, which is in accordance with the Marxism practical reason to conduct a research toward a specific group of people over a specific practice. Secondly, a general introduction of the terms or reason in the academic scope of our country: practical reason, judicial reason, legal reason, and rationality. Thirdly, the judicial reason is given a specific semantic research: in the first place, the main content meaning of judicial reason is the judge’s reason, which is the actual reason reflected by the special judicial person of judges’ in judicial practice. Judicial reason stems from human general reason, but it tends to be specified, specialized, systemized, and technicalized. The actual story of Judge Edward Coke is an illustration of judge’s reason. In the second place, a second meaning of judicial reason is the rationality of judicial system. The coexistence of the two meaning of judicial reason is due to the difference of context: the much more frequently cited proposition is "man is reasonable", while when we refer to the reason related with the system actually we are referring to the rationality of reason.Chapter three introduces the features and standards of judicial reason. It mainly takes the judge’s judicial practice as a view point and research creatively into the judicial reason together with practical elements. Judicial reason has the following features: first, objectivity is judicial reason’s major feature. In the western philosophical history, philosopher of both materialism and idealism regard purposiveness as a symbol of reason. The pruposiveness of man reflects the requirement of reason and the value of it to the most. Second, consistency is judicial reason’s value-orientation, philosophy originates from the request of consistency of man, which is an ideal of modern legal society. The prosperity of western world is directly dependent on the consistency in law. Third, practicability is judicial reason’s nature. The existence of judicial reason depends on the fact of judicial practice which is the only way that judicial reason to be exemplified. The interaction between judicial reason and judicial practice is repetition and circulation; the judicial reason can never act beyond the court judicial practice. Fourth, formality is judicial reason’s unique style. Formality exists in all the reasonable legal system with different degree, whose point is to made the law predictable in reason, therefore, the individual effects are limited to the smallest range, which devoid of chance control. Judicial reason contains a dialectic relation between formal reason and substantive reason, and emphasizes the principle of the priority of the formal reason. Fifth, conservatism is judicial reason’s internalized feature. A legal society grants the judges a conservative tendency in legal practice, which is because of the limitation of the procedure and social convention and the judges maintain the respect toward the tradition. Sixth, argumentation is judicial reason’s externalized feature. Argumentation, in its simple sense is to give reasons to support certain purpose or judgment. In legal practice, legal argumentation and reference occur together, legal reference is both argumentation of law and justification of law. A persuasive judgment is an externalization of judge’s reason.The standards of evaluation of judicial reason is the principle of evaluate judicial reason objectively: first, the standard of legal procedure, that is the judgment and the judicial practice must in consistency with the regulation of procedure law, the procedure rights of the participants of the lawsuit must be fulfilled under the present system. The concept of procedure law derives from the due process and developed to now, not only does procedure concerns with the justice, but also concerns with the fact: procedure justice generally refers to the justice in process, the procedure fact refers to realize as much fact within the limitation of procedure as possible. second, sufficiency of evidence, that is the evidences upon which the sentence is made by the judge must be sufficient to make the judge convinced in mind. The procedure to qualify the fact according to the evidence involves a series of important issues like the relationship between the cognition subject and the objective world. The doctrine of discretional evaluation of evidence is the doctrine that the judge determines the validness of evidence, the core of which is to rule out the reasonable doubt, which is a typical method of falsification. Third, the standard of logical analogy. Analogy refers to the judicial procedure of lawsuit within which the judge explains the properness of the fact, processing results and the application of law. The judge’s analogy is the result of publication of judicial right, the inner necessity of modern judiciary and also a valid method to check the judge’s discretion. The properness of judgment not only comes from the authority of the judge but also from the judge’s reason. Fourth, the standard of impartial result, the impartial result is a thinking set of a judge. Impartialness and justice are ethically important toward the definition of law and are also man’s most basic anticipated legal function. An impartial judgment actually is the realization of "justice within the law".Chapter four discusses the judicial reason and logic. In the first place, logic and reason are derived from the same root: logos, logic are the elementary foundation of judicial reason. The goal of judicial analogy is the achievement of the consistency between the judicial regulation and the judicial judgment; in the second place, the logical views are mainly composed of logical suprematism, logical skepticism, and integratism; thirdly, the reason of logic should be reconsidered from the aspect of "the life of law is experience". Judicial logic is not a absolute and concealed system, the judicial logic is not only a thinking discipline but also a method to achieve judgment of value. The core of judicial reason should be a certain goal realized in the interaction of practice and logic; therefore, it is a judge’s responsibility to comply with the logic.Chapter five introduces the first method of judicial reason: a formal judicial analogy. Firstly, the judicial analogy is defined as "the justification procedure or method of the judge by inference or arguing according to reasons which are set up by the materials in relation". Then three analogical methods are introduced: first, the deduction of judicial analogy is a judge’s basic thinking style, it fulfills the requirement of consistency of judicial reason; second, the striking value of induction lies in the capability, which can fulfill the task of concluding and confirming of legal fact, meanwhile, the judge’s experiences have to be standardized through induction; third, the core of analogism is the principle of stare decisis, the previous judgment are vitally important to common law in this sense. It is not proper to understand analogy from the aspect of induction; analogism is not a simple application of logic, but a creative cognition which reflects the style of judicial reason apart from logic.Chapter six introduces the second method of judicial reason: a dialectical judicial analogy. The basics of its realization can be generalized as the following: the objective existence of hard cases, the objective requirement of properness of the application of rules, the bipartite existence of laws and morale, and the limits of formal judicial analogy. The six dialect analogies are integrated into three: the rule of equity, legal principle analogy, the conflict solving between the law and policy. After positive analysis, the differences of practicability are generalized. In the end, an elaboration of the differences between the formal analogy and dialectic analogy is given, and emphasized the importance of formal analogy.Chapter seven elaborates on the theoretical core of judicial reason: consistency. Firstly, the origin and development of consistency is analyzed here, secondly, according to the survey of different views of academic schools, the central position of consistency in the area of judicial reason is emphasized; thirdly, analysis of the origin of the inconsistency will deepen the understanding of the complexity of the actual prospect that judicial reason is faced with. At last, the point is made that the practical reason is the core of judicial reason, and the practical approach to it is to achieve the goal of consistency through properness in method.

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