论法律理性的逻辑基础转换
发布时间：2018-10-12 20:17
【摘要】：如何彰显法的理性一直是法学理论研究的重要课题,对于这个问题不同的时期有不同的回答。在法治奠基的近代,占据主流地位的实证主义法学给出的答案是追求法的形式理性,认为只要保证了法律推理的形式有效性,也就保证了唯一正确答案的实现,因此将研究的重心放在对法律概念和法的内部逻辑结构的研究上。从霍姆斯开始,法律实用主义强调法律与社会利益不可割舍的联系，，主张法律判决的产生是经济、社会、文化、心理等多种因素共同作用的产物,形式主义的企图过于天真。实用主义发展到波斯纳,更是否定了法律的科学性和客观性,彻底将法律的理性和自主性瓦解殆尽,法治而临着严重的理性危机。法律论证理论为在司法中重构法的理性进行了有益的尝试,立足于当代哲学的语言学转向和实践理性的回归,法律论证放弃了对形式理性的追求,强调论证的对话性和辩证性。对法的理性的追求由形式理性过渡到辩证理性。在从形式理性到辩证理性过渡的过程中,形式主义的三段论的逻辑基础不再适用,而新的逻辑基础尚未确立,法律理性的实现需要新的逻辑基础作支撑。新的逻辑基础既要能够保证推理的形式有效性又要能够处理形式外的实质因素。这样的逻辑基础在传统的逻辑观念下是找不到的,因此我们应该转变固有的逻辑观念。逻辑可修正理论为我们转变逻辑观念提供了理论上的支持。逻辑可修正理论告诉我们,一个逻辑系统存在潜在的被修正的可能性,逻辑学科的范围也在不断的变化。因此在为法的理性确定新的逻辑基础时不应该固守传统,随时准备改变自己关于“什么是逻辑”“逻辑对与错”的观念,跳出现有的逻辑框架的束缚。在形式逻辑的框架外,我们可以发现近年来蓬勃兴起的非形式逻辑理论是一个很好的选择,在实现法的理性方面可以提供很大的帮助。以逻辑的实践转向为背景的非形式逻辑自诞生之日起就一直以日常语言论证为研究对象,主张论证的语用性和辩证性,强调正当论辩程序和论辩权利行使的重要性,以允分性和可接受性取代了以往的形式有效性标准。这些都与法律论证理论有着高度的契合。同时,作为日常语言论证的范例,法律论辩实践也一直是非形式逻辑研究的范例。非形式逻辑在从法律论证领域获得素材的同时,也能够为法律论证提供新的思维和方法上的支持。二者之间天然的联系为非形式逻辑作为法律论证的逻辑基础,帮助其实现法的理性提供了可能性和可行性
[Abstract]:How to reveal the rationality of law has always been an important subject in the study of legal theory, and there are different answers to this question in different periods. In modern times when the foundation of the rule of law is laid, the answer given by positivist jurisprudence, which occupies the mainstream position, is the pursuit of formal rationality of law. It is believed that as long as the formal validity of legal reasoning is guaranteed, the realization of the only correct answer can be guaranteed. Therefore, the focus of the study is on the concept of law and the internal logical structure of law. From Holmes on, legal pragmatism emphasizes the connection between law and social interests, and claims that the production of legal judgment is the product of economic, social, cultural, psychological and other factors, and the attempt of formalism is too naive. The development of pragmatism to Posner negates the scientific and objective nature of the law, completely disintegrates the rationality and autonomy of the law, and the rule of law is facing a serious rational crisis. The theory of legal argumentation has made a beneficial attempt to reconstruct the rationality of law in judicature. Based on the linguistic turn of contemporary philosophy and the return of practical reason, legal argumentation has abandoned the pursuit of formal rationality and emphasized the dialogue and dialectics of argumentation. The pursuit of rationality of law is from formal rationality to dialectical rationality. In the process of transition from formal rationality to dialectical reason, the logical basis of formalism is no longer applicable, but the new logical basis has not been established, and the realization of legal rationality needs new logical basis. The new logical basis can not only guarantee the formal validity of reasoning, but also deal with substantive factors outside form. This kind of logic foundation can not be found under the traditional logic idea, so we should change the inherent logic idea. The theory of logical modifiability provides theoretical support for us to change the concept of logic. Logic modifiability theory tells us that a logic system has the potential to be modified, and the scope of logic discipline is constantly changing. Therefore, we should not stick to the tradition and be ready to change our own concept of "what is logic" and "logic right and wrong" when we determine the new logical basis for the rationality of law, and jump out of the shackles of the existing logical framework. Outside the framework of formal logic, we can find that the theory of informal logic, which has flourished in recent years, is a good choice and can be of great help in the rational aspect of realizing law. The non-formal logic with the background of the practice turn of logic has been taking everyday language argumentation as the research object since its birth. It advocates the pragmatics and dialectics of argumentation, and emphasizes the importance of proper argumentation procedure and the exercise of argumentation right. Acceptance and acceptability replaced the previous formal validity criteria. All these agree with the theory of legal argumentation. At the same time, as an example of daily language argumentation, the practice of legal argumentation has always been an example of the study of non-formal logic. While obtaining material from the field of legal argumentation, informal logic can also provide new thinking and method support for legal argumentation. The natural connection between the two provides the possibility and feasibility for the non-formal logic as the logical basis of legal argumentation and helps to realize the rationality of the law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D90-051
本文编号：2267465
[Abstract]:How to reveal the rationality of law has always been an important subject in the study of legal theory, and there are different answers to this question in different periods. In modern times when the foundation of the rule of law is laid, the answer given by positivist jurisprudence, which occupies the mainstream position, is the pursuit of formal rationality of law. It is believed that as long as the formal validity of legal reasoning is guaranteed, the realization of the only correct answer can be guaranteed. Therefore, the focus of the study is on the concept of law and the internal logical structure of law. From Holmes on, legal pragmatism emphasizes the connection between law and social interests, and claims that the production of legal judgment is the product of economic, social, cultural, psychological and other factors, and the attempt of formalism is too naive. The development of pragmatism to Posner negates the scientific and objective nature of the law, completely disintegrates the rationality and autonomy of the law, and the rule of law is facing a serious rational crisis. The theory of legal argumentation has made a beneficial attempt to reconstruct the rationality of law in judicature. Based on the linguistic turn of contemporary philosophy and the return of practical reason, legal argumentation has abandoned the pursuit of formal rationality and emphasized the dialogue and dialectics of argumentation. The pursuit of rationality of law is from formal rationality to dialectical rationality. In the process of transition from formal rationality to dialectical reason, the logical basis of formalism is no longer applicable, but the new logical basis has not been established, and the realization of legal rationality needs new logical basis. The new logical basis can not only guarantee the formal validity of reasoning, but also deal with substantive factors outside form. This kind of logic foundation can not be found under the traditional logic idea, so we should change the inherent logic idea. The theory of logical modifiability provides theoretical support for us to change the concept of logic. Logic modifiability theory tells us that a logic system has the potential to be modified, and the scope of logic discipline is constantly changing. Therefore, we should not stick to the tradition and be ready to change our own concept of "what is logic" and "logic right and wrong" when we determine the new logical basis for the rationality of law, and jump out of the shackles of the existing logical framework. Outside the framework of formal logic, we can find that the theory of informal logic, which has flourished in recent years, is a good choice and can be of great help in the rational aspect of realizing law. The non-formal logic with the background of the practice turn of logic has been taking everyday language argumentation as the research object since its birth. It advocates the pragmatics and dialectics of argumentation, and emphasizes the importance of proper argumentation procedure and the exercise of argumentation right. Acceptance and acceptability replaced the previous formal validity criteria. All these agree with the theory of legal argumentation. At the same time, as an example of daily language argumentation, the practice of legal argumentation has always been an example of the study of non-formal logic. While obtaining material from the field of legal argumentation, informal logic can also provide new thinking and method support for legal argumentation. The natural connection between the two provides the possibility and feasibility for the non-formal logic as the logical basis of legal argumentation and helps to realize the rationality of the law.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D90-051
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