Comparative learning of substantive reasoning;
Hume, a famous scholar, said: "All reasoning can be divided into two categories, one is the reasoning of proof, that is, the reasoning about the relationship between ideas;" The other is probable reasoning, that is, reasoning about facts and actual existence. "Hume's two kinds of reasoning were later named formal reasoning and substantive reasoning.
Substantive reasoning, also known as dialectical reasoning, refers to the reasoning of choosing one of two contradictory statements with definite truth.
First, the connection between formal legal reasoning and substantive legal reasoning.
1, pursuing the same ultimate goal
The process of applying the law is actually the reasoning process of drawing conclusions from cases according to legal norms. In this process, we should not only use the reasoning forms and rules studied by ordinary logic, but also deeply explore the specific content of legal norms or the initial legislative intention, and also consider other complex social factors to solve difficult cases. Therefore, the process of legal reasoning is actually a process of comprehensive application of two reasoning methods, both of which serve the application of law. Their ultimate goal is to standardize and guide people's behavior, solve disputes or disputes, adjust legal relations, and achieve a certain legal order.
2. The application steps of the two methods are the same.
There are three necessary steps in the application of law: one is to find out the facts of the case, the other is to determine the applicable legal provisions, and the third is to infer the judgment conclusion of the case according to the legal provisions. The first link is not a question of pure reasoning, but is solved through actual investigation and evidence collection; The second and third links are to determine the premise and make inferences, which belong to the category of logical analysis and reasoning. When people use formal and substantive legal reasoning in real life, they generally have to go through the above three links to reach the final conclusion. However, the legal basis used in substantive legal reasoning is broad and abstract legal principles, axioms or principles.
3. Both users are basically the same.
Some people think that legal reasoning is a kind of judicial behavior, which is quite formal and normative and can have important legal consequences. Other scholars believe that legal reasoning is a "cross-disciplinary" activity, which runs through all legal activities (legislation, justice, law enforcement, legal services, legal research, etc. Legal reasoning is not a judge's patent, because "the role of law outside the court is as diverse and important as that in the court:" Law is for ordinary men and women, and it is considered as a certain structure of their lives ". Citizens, lawyers and jurists can use two legal reasoning methods to solve legal problems. It's just that the conclusions they draw through reasoning are not as legally effective and enforceable as judges. The author believes that the latter view is correct, because in real life, people (whether legal professionals or not) use legal reasoning to varying degrees, and a large number of legal reasoning plays a role in the non-litigation process. People can form a clear understanding of legal norms through legal reasoning, constantly strengthen their understanding of the law, and improve their awareness of abiding by the law and safeguarding rights. It can be said that the role of law in adjusting social relations has been realized to a greater extent in this process. Of course, no one can deny the important role of judicial reasoning (mainly the reasoning of judges) in the application of law. After all, it is the most effective legal reasoning, which plays a role in guiding, testing and finally judging the legal reasoning of different subjects.
4. Both of them should be valued in the application process.
Chinese scholars Yong Qi and Jin Chengguang once pointed out that value judgment is the standard to distinguish formal legal reasoning from substantive legal reasoning, and substantive legal reasoning is involved in the value rationality of law, otherwise it is formal legal reasoning. Here, formal legal reasoning has the same meaning as legal analytical reasoning, substantive legal reasoning and legal dialectical reasoning. This view has been opposed by some scholars. They believe that value judgment is the soul of legal reasoning. Without value judgment, there is no legal reasoning, and what kind of value judgment there is, there is what kind of legal reasoning. 10 The author agrees with the latter view, because legal reasoning is the application of logical reasoning in law, and legal norms themselves contain a fixed value orientation. People's thinking activities cannot exclude the influence of subjective factors, among which value judgment is undoubtedly one of the most important factors. Because value itself is the usefulness of the object to meet the needs of the subject, all human activities are aimed at pursuing a certain value. Therefore, in the process of reasoning by law, it is impossible to completely exclude the value factor.
Second, the difference between formal legal reasoning and substantive legal reasoning.
As two basic ways of legal reasoning, there are obvious differences between them. Mainly in the following aspects:
1, the two reflect different values.
Formal legal reasoning mainly includes deductive reasoning, inductive reasoning and analogical reasoning, which are also the three basic forms in formal logic. It can be said that formal legal reasoning is an organic combination of law and formal logic. Law is a kind of ideological will in terms of its form, and formal logic is the law that ideological will activities must follow; Law is the stable relationship between thought and will, and formal logic is the fundamental guarantee to maintain the stability and certainty of thinking activities. The certainty and stability of law are quite consistent with the stability of formal logic. The organic combination of the two shows a stable legal procedure, the essence of which is that important human activities are brought into the legal track. 1 1 Its value is legal. The so-called legality has two meanings: first, the setting of legal norms should be legal, that is, legal in procedure and legal in rank, forming an orderly, coordinated and stable legal system; Second, law enforcement and judicial activities should be legal, that is, they should be carried out in strict accordance with the law and follow the principle of strict rules. Law enforcers and judges should "enforce the law" instead of "making laws". 12 for example, as far as deductive reasoning is concerned, it means reasoning in strict accordance with legal norms. It is carried out in full accordance with the law, which basically maintains the "original flavor" of the law and is the perfect embodiment of legal values. Deductive reasoning, or syllogism, is based on the judgment of two properties (major premise and minor premise) related to a concept, and deduces the judgment (conclusion) of another property. Facts and laws are two known judgments (premises) for judges to make legal reasoning when trying cases, and judges must make judgments or rulings (conclusions) according to these two premises. As far as the application of law is concerned, legal norms (generally composed of behavior patterns and legal consequences) are the major premise, the facts of the case are the minor premise, and the conclusion is a judgment or ruling. 13 The same is true for inductive reasoning and deductive reasoning. Although the conclusion may be probable, it still cannot go beyond the legal provisions, that is, it is legal.
Substantive legal reasoning is the embodiment of dialectical logic in legal thinking, and the value it pursues is reasonable. The so-called rationality refers to the idea of conforming to social progress and development, developing democracy, safeguarding human rights and public order and good customs. Substantive legal reasoning As some scholars have said, the process of applying substantive legal reasoning can't be like a meat grinder, where the raw materials of legal provisions and facts are put in, and the stuffing of the judgment is output below to keep the original flavor.
Reasoning based on the basic value orientation of legislation is often carried out in the absence of clear legal provisions or the obvious inapplicability of legal provisions, which are mostly applicable to the handling of difficult cases. In a case in which a doctor who caused a sensation in Beijing took the eyes of a corpse without permission, the doctor's behavior already had the formal elements of "the crime of illegal theft and insulting the corpse"; However, from another perspective, organ transplantation should be encouraged and supported. In the case that the relevant laws are not perfect, doctors secretly take the eyes of the corpse for the purpose of solving the patients' pain and promoting the development of this cause. Although it is illegal, it is by no means the object of punishment in criminal law. Therefore, the procuratorial organ made a decision not to sue. Here, the informal sources of legal principles and other laws are the basis of dialectical reasoning of China judicial organs. This paper was collected by www.LWLM.COM of China Paper Union.
As can be seen from the above explanation, the two legal reasoning methods are in conflict in values-the conflict between rationality and legitimacy. Numerous facts show that the contradiction between rationality and legitimacy is inevitable. 15 this is mainly determined by the contradiction between the relative stability of law and the sustainability of social development, and the contradiction between the complexity of social relations and the limitations of human understanding. So, what should be done when the two conflict? When "rationality" and "legitimacy" conflict, people are faced with the choice of breaking through the outdated legal forbidden zone or sticking to the creed that "evil law is law" and ignoring "rationality". According to the basic concept of jurisprudence, the "due law" should be higher than the "due law", and the law must abide by the principle of combining logic with historical requirements, so "rationality" is higher than "legitimacy". After all, "the law was born for people, not people born for the law." 16
2, the scope of application of the two is different.
Formal legal reasoning is far more applicable than substantive legal reasoning. Deductive reasoning plays an important role in the legal reasoning of law-making countries, and most cases are solved by deductive reasoning. Inductive reasoning is particularly important in legal reasoning in case law countries. In case law countries, when handling cases, judges need to compare the facts of this case with the facts of precedent, and finally decide whether it can be applied. This kind of reasoning has a narrow scope of application because the rules are taken from individual cases. Analogical reasoning is one of the common methods to fill legal loopholes. The premise of this reasoning is that although the legal provisions are not clearly stipulated, the basic principles and principles on which the legal provisions are based can include a certain behavior or event. Therefore, the analogy of a rule is based on the needs of certain policies, justice and fairness, rather than the explicit provisions of the law. In the field of criminal justice, analogy is not used.
Substantive legal reasoning is mainly applicable to the handling of difficult cases. American legal philosopher Edgar? When talking about the necessity of using substantive legal reasoning, Bodenheimer listed three situations: (1) the law did not provide the basic principles for solving problems; (2) The legal norms themselves are contradictory or contradictory; (3) It is obviously unfair to apply a legal norm to a specific case. 17 some scholars think that the above list is not comprehensive enough, and the application of substantive legal reasoning generally includes the following situations: (1) There is a "legal gap"; (2) The meaning of legal norms is vague; (3) The laws and regulations are contradictory; (4) Facing the dilemma of "legitimacy" and "rationality"; (4) The legal provisions contain various possible treatment provisions. 18
3. They adopt different reasoning methods.
Formal legal reasoning mainly adopts formal logic reasoning methods, such as deductive reasoning, inductive reasoning and analogical reasoning. Substantive legal reasoning adopts dialectical reasoning method. Bodenheimer, according to Aristotle's point of view, "dialectical reasoning is to seek' an answer to answer the question about which one should be accepted in two contradictory statements'. ..... Because there is no irrefutable' basic principle' to make the conclusion inevitable, usually what we can do is to explore the truth by presenting plausible, convincing and reasonable arguments. " The methods of dialectical reasoning include: "dialogue, debate, critical inquiry and the method of sticking to one view and opposing another to find the best solution." Because dialectical reasoning needs to be influenced and dominated by the subjective consciousness of the subject, it seems to be less convincing than formal legal reasoning, and its application scope in written law countries is extremely limited. Especially in the case that China's legal system is not perfect and the quality of judges needs to be improved, it is necessary to be cautious to use dialectical methods for judicial reasoning. Otherwise, it is likely to aggravate judicial corruption, lead to the abuse of judicial power and reduce the prestige of the law.
4. Value judgment plays different roles in two kinds of reasoning.
The function of value judgment in formal legal reasoning is mainly to confirm the identity of big and small premises to avoid making the logical mistakes of "four concepts", to judge the facts in the minor premises to distinguish the main case facts, and to take "people's needs" or "legislators' value judgment" as the standard of judicial value judgment activities, so as to deduce judicial value judgment from the case facts and open up the logical channel for the big and small premises to draw reasonable conclusions. 19 Give full play to the functions of discovery, comparison, classification, characterization and measurement, and value orientation. That is to say, in formal legal reasoning, value judgment and formal logic complement each other, which together ensure the smooth progress of formal legal reasoning.
Different from formal legal reasoning, substantive legal reasoning is not based on confirmed case facts and clear and complete legal provisions. Using deductive reasoning mode, decisions and judgments can be logically deduced. On the contrary, substantive legal reasoning is based on a series of "in-law" or "out-of-law" factors to comprehensively judge the value of case facts. In other words, substantive legal reasoning mainly involves the evaluation and value judgment of legal provisions and the substantive content of the case facts themselves. It can be said that the main or even the only basis of substantive legal reasoning is value judgment. Because substantive legal reasoning is mainly applicable to cases that are difficult to apply the law, if you leave the value judgment, the case will not be solved. It can be seen that the position of value judgment in substantive legal reasoning is incomparable to formal legal reasoning.