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On the dialectical reasoning in judicial decisions

Author: ZhangHuiYun
Tutor: WangHong
School: China University of Political Science
Course: Logic
Keywords: Dialectical reasoning Conflict of laws Select Fairness and justice
CLC: D90-051
Type: Master's thesis
Year: 2011
Downloads: 66
Quote: 0
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Abstract


Judicial decisions into three parts: the discovery of the facts, evidence of legal access and judgment. Legal access is an integral part of, and is also a long time the main areas of the jurists, and the process of obtaining legal judicial classified cases have been identified in nature, that is, to find the facts of the case relative legal norms adaptation process. Due to the diversity of the legal norms and abstract characteristics, the judge in the process of seeking legal norms may encounter a lot of confusion, such as \\When faced with these legal challenges, the judge can not stand idly by, but should find ways and means to solve the problem in different ways. Due to the complexity of the legislative process and the limitations of the human cognitive ability, \inconsistent provisions, will inevitably lead to confusion and difficulties of application of the law, and dialectical reasoning methods or means exactly what people were looking for a solution to the long-term practice of conflict of laws. In addition, due to the dialectical reasoning has its own substantive and contingent features, in order to enhance the objectivity and reliability of the mode and method of dialectical reasoning becomes very necessary in practice also has a very important meaning and value. The first part of this article introduces the research status and research significance of dialectical reasoning the dialectical reasoning ancient Greek Aristotle put forward in the process of debate and dialogue with people, and has been for several thousand years of history, in this process, many Chinese and foreign scholars study philosophy and jurisprudence of dialectical reasoning, many research paper is exclusively devoted to the research and Law. This section first sort out the existing jurisprudence and law logic of dialectical reasoning research, pointed out its shortcomings and deficiencies, and then summarize and generalize the theoretical and practical significance of dialectical reasoning research judicial decisions. Based on the first part of the research results have been carried out combing the second part of the study judicial judgment dialectical reasoning of the meaning and applies This section mainly dialectical reasoning of the meaning and applicable issues carried generalization and summarization, last pointed dialectical reasoning in applicable to judicial practice, should pay attention to the real problem. The third part describes the use of dialectical reasoning based on the conflict of laws case, mainly from the logical structure of the law, the purpose of the law and the intent and value of legal orientation basis and social habits or social practices and legal norms, the social utility or other social norms of social interests and public policy or social fairness and justice concept based on two discusses, intended to illustrate the dialectical reasoning is not subjective, arbitrary, but its objective basis. Five parts, on the basis of past literature and data carried out studies of the author trying to Legal Logics perspective summarizes the dialectical reasoning of the mode and method, in order for the judges in the judicial practice of application of dialectical reasoning play a certain reference for the role. The author summarizes the judicial decisions in four major mode of dialectical reasoning: principles-based model, the consequences-oriented model-oriented model of the values ??of the times and the advantages oriented mode; two important ways: the method of legal interpretation, and argumentation reasoning method.

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