言语行为理论视野中的形式法律推理重构
发布时间：2018-12-27 15:01
【摘要】：逻辑学以推理为研究中心,法律逻辑关注的核心问题也是法律推理。我们通常使用推理这个概念,包含着某命题被接受为真,即事先接受了作为前提的命题为真,由于规范本身既不是真的,也不是假的,因而在规范这一术语的意义上谈不上根据某些规范推导出另一些规范。以规范为前提建立的逻辑系统没有建立像形式逻辑命题理论那样普遍公认的的系统,存在的问题争论很大并且极其复杂。 英国语言哲学家奥斯汀(J. Austin)开“言语行为理论”之先河,提出并详细、明确地研究言语行为理论,此后他的学生美国著名语言分析哲学家约翰·塞尔(John Searle)修正并发展了这一理论,使它进一步获得广泛而又重要的影响力。塞尔继承、修正和发展了奥斯汀理论,建立了更加完善、系统化的言语行为理论。本文从言语行为理论的视角出发,分析以言行事行为之间推理的可能性,并对法律推理的大前提、小前提以及结论的逻辑性质进行言语行为理论分析,以全新的理解方式对法律推理进行解构,算是对规范推理的一种语用学意义上的解读。本文主要从以下几个部分展开讨论: 第一部分:言语行为理论概述 本部分首先简单地介绍言语行为理论产生的历史渊源、哲学理论背景以及奥斯汀提出言语行为理论的目的和意义,之后通过对比系统地阐述塞尔言语行为理论的内容和分类,主要详述以言行事行为及其分类。 第二部分:形式法律推理的传统逻辑构造 本部分首先通过分析法律推理的传统涵义以及分类,对形式法律推理进行重新界定,把形式法律推理定义为法律推理的逻辑形式,之后对命题理论下的形式法律推理的模式——规范推理中的法律规范性质以及规范推导的几种形式进行分析,并指出其中的不足。 第三部分:言语行为理论视野下形式法律推理的逻辑重构 本部分结合塞尔言语行为理论,尤其是以言行事行为,对法律推理进行分析,首先分析以言行事行为之间进行逻辑形式推理的可能性,并确定此类推理的一些规则,然后在言语行为理论的视角下对法律推理进行剖析,揭示法律推理的大前提、小前提以及结论的语用学性质,并在此基础上提出形式法律推理的模式。 第四部分:结语 本部分根据法律推理的研究现状,提出在言语行为理论视野下重构法律推理的意义。
[Abstract]:Logic takes reasoning as the research center, and the core problem of legal logic is legal reasoning. We usually use the concept of reasoning, in which a proposition is accepted as true, that is, a proposition that is accepted as truth in advance, because the norm itself is neither true nor false. Thus, in the sense of the term norm, it is not possible to deduce some norms according to others. The logical system established on the premise of norm does not have a universally accepted system like the formal logic propositional theory, and the existing problems are very controversial and extremely complex. Austen (J. Austin), an English language philosopher, pioneered the theory of speech act, and put forward and studied the theory of speech act in detail. Since then, John (John Searle), a famous American philosopher of language analysis, has revised and developed this theory, making it gain extensive and important influence. Searle inherits, modifies and develops Austin's theory and establishes a more perfect and systematic speech act theory. From the perspective of speech act theory, this paper analyzes the possibility of reasoning between words and deeds, and makes a theoretical analysis of the major premise, small premise and logical nature of the conclusion of legal reasoning. To deconstruct legal reasoning in a new way of understanding is a pragmatic interpretation of normative reasoning. This paper mainly discusses the following parts: the first part: an overview of speech act theory. This part first briefly introduces the historical origin of speech act theory. The background of philosophy and the purpose and significance of speech act theory put forward by Austin. Then, the content and classification of Searle's speech act theory are expounded systematically by contrast, mainly by words and deeds and their classification. The second part: the traditional logic structure of formal legal reasoning. This part firstly redefines formal legal reasoning by analyzing the traditional meaning and classification of legal reasoning. This paper defines formal legal reasoning as the logical form of legal reasoning, and then analyzes the mode of formal legal reasoning based on propositional theory, the nature of legal norms in normative reasoning and several forms of normative derivation, and points out its shortcomings. The third part: the logical reconstruction of formal legal reasoning from the perspective of speech act theory. This paper first analyzes the possibility of logical reasoning between words and deeds, and determines some rules of such reasoning, then analyzes the legal reasoning from the perspective of speech act theory to reveal the premise of legal reasoning. On the basis of the pragmatic nature of the small premises and the conclusion, the model of formal legal reasoning is put forward. Part four: the conclusion part puts forward the significance of reconstruction of legal reasoning in the view of speech act theory according to the present situation of legal reasoning.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90-051
本文编号：2393247
[Abstract]:Logic takes reasoning as the research center, and the core problem of legal logic is legal reasoning. We usually use the concept of reasoning, in which a proposition is accepted as true, that is, a proposition that is accepted as truth in advance, because the norm itself is neither true nor false. Thus, in the sense of the term norm, it is not possible to deduce some norms according to others. The logical system established on the premise of norm does not have a universally accepted system like the formal logic propositional theory, and the existing problems are very controversial and extremely complex. Austen (J. Austin), an English language philosopher, pioneered the theory of speech act, and put forward and studied the theory of speech act in detail. Since then, John (John Searle), a famous American philosopher of language analysis, has revised and developed this theory, making it gain extensive and important influence. Searle inherits, modifies and develops Austin's theory and establishes a more perfect and systematic speech act theory. From the perspective of speech act theory, this paper analyzes the possibility of reasoning between words and deeds, and makes a theoretical analysis of the major premise, small premise and logical nature of the conclusion of legal reasoning. To deconstruct legal reasoning in a new way of understanding is a pragmatic interpretation of normative reasoning. This paper mainly discusses the following parts: the first part: an overview of speech act theory. This part first briefly introduces the historical origin of speech act theory. The background of philosophy and the purpose and significance of speech act theory put forward by Austin. Then, the content and classification of Searle's speech act theory are expounded systematically by contrast, mainly by words and deeds and their classification. The second part: the traditional logic structure of formal legal reasoning. This part firstly redefines formal legal reasoning by analyzing the traditional meaning and classification of legal reasoning. This paper defines formal legal reasoning as the logical form of legal reasoning, and then analyzes the mode of formal legal reasoning based on propositional theory, the nature of legal norms in normative reasoning and several forms of normative derivation, and points out its shortcomings. The third part: the logical reconstruction of formal legal reasoning from the perspective of speech act theory. This paper first analyzes the possibility of logical reasoning between words and deeds, and determines some rules of such reasoning, then analyzes the legal reasoning from the perspective of speech act theory to reveal the premise of legal reasoning. On the basis of the pragmatic nature of the small premises and the conclusion, the model of formal legal reasoning is put forward. Part four: the conclusion part puts forward the significance of reconstruction of legal reasoning in the view of speech act theory according to the present situation of legal reasoning.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D90-051
【引证文献】
相关硕士学位论文 前1条
1 梁婷婷;言语行为理论的法律实践价值初探[D];吉林大学;2012年
，本文编号：2393247
本文链接：https://www.wllwen.com/falvlunwen/falilunwen/2393247.html
