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On the Objectivity of the Dialectical Reasoning

Author: CheZuoHua
Tutor: LiGuiLin
School: East China University of Political Science
Course: Legal
Keywords: legal methods legal reasoning formal reasoning dialectical reasoning objectivity
CLC: D90
Type: Master's thesis
Year: 2013
Downloads: 7
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Abstract

The rule of law is a rational business which need using the legal reasoning toreach its purpose. According to the standpoint of Edgar Bodenheimer, the legalreasoning can be divided into the formal reasoning and the dialectical reasoning.Such distinction is just for the convenience of research. Actually the formalreasoning and the dialectical reasoning cannot be seperated. The dialecticalreasoning is always used in the hard cases. There are many doubtings andchallengings on the objectivity of the legal reasoning in the history of legalphilosophy, which aim more at the dialectical reasoning in fact.The doubtings and challengings on the objectivity are also in the field ofphilosophy and social science. If the objectivity can be explained by philosophy, thatof the dialectical reasoning can also be understood easily. Based on the semanticanalysis of object and objectivity, we can find that objectivity contains two factors——the persons and the objects which are connected with each other. The objectivityin the philosophy and social science which is not different with that in the naturalscience cannot completely get rid of the human consciousness or only exists in theobjective world. Two philosophical shifts namely both “epistemological turn” in thecontemporary and “practical turn” and “linguistic turn” in the modern provide usabundant thought materials to look on the “objectivity”, which is from the duality agreement of the subjective and objective instead of the opposite. EvenHans-George Gadamer’s Philosophical Hermeneutics makes us understand moreeasily the objectivity and even the dialectical reasoning possible. The dialecticalreasoning is not determined only by the regulations and the case facts, not by thejudges and the other participants either. The gaze of judges and the other participantsneeds to flow back and forth between the regulations and the case facts of whichthen reach the fusion of horizon by the organic unity. Who reaches the horizonfusion, who achieves the objectivity of the dialectical reasoning.With discussing the objectivity of the dialectical reasoning, the factors as formallogic, value judgment and intuition thinking cannot be ignored either. Though thereare some shortcomings in the formal logic, the formal logic makes thinking processregular, increases the trial results predictable and helps to realize the objectivity then.Value judgement and intuition thinking are psychological factors. Value judgementnot only exists in the regulations, but also in the case facts affirmation. The form ofvalue judgement is subjective, but its content is objective. The judges’ valuejudgement should be consistent with the social’s value. Intution thinking is just thebeginning of the reasoning. Its function cannot be overstated. It still needs to betested and adjusted in the process of reasoning.In the persuit of the objectivity of the dialectical reasoning, we always hold suchan idea that on the premise of recognizing the subjectivity of the reasoning, by usingof logic rules including the legal system, the procedure system and the proof system,we hope to restrict the judges’ wanton tyranny; by using of the standards of valuejudgement (Now the socialist legal system with Chinese characteristic is our firstchoice.), we guarantee the objectivity of value judgement. The interpretioncommunity in law uses the discourse theory to achieve the ideal content of theparties. This procedure can coordinate the tension between the subjective andobjective and strengthen democracy in the reasoning. We can persuit the recognitionof the trial results from the parties and the social public. The discretion of the judgesis also restricted to some degree. The objectivity of the legal reasoning will berealized. Although discussing the objectivity of the dialectical reasoning, we do not wantto negative the formal reasoning, even the formalist law. The formal reasoning isalso the mainstream of the legal reasoning while the formalist law is still thefoundation of law construction. If the dialectical reasoning is permitted to use on thepremise of using the formal reasoning in order to highlight the substantive spirit ofthe rule of law to a certain degree, its purpose is only to guarantee the freedom andrights of the people.

On the Objectivity of the Dialectical Reasoning

Abstract

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