| The article is divided into four parts:Part one: the outline of legal argumentation. Firstly, it reviews the theoretical origin of legal argumentation: the most ancient thought origin of the legal argumentation is the rhetoric and dialectics in ancient Greek where we discovered the embryonic form of it. Secondly, it emphasizes the argumentation, the legal argumentation and the legal reasoning: two important concepts are given in this article---argumentation, the legal argumentation, and discriminate the legal argumentation and the legal reasoning. The argumentation is used to confirm the thought process of some given propositions about acceptability. The legal argumentation is the thought process in which the community of the legal explanation confirms the acceptability (validity and justice) of case standard proposition as the judicative result of case by certain basis and reason. The legal reasoning and the legal argumentation are the two different aspects of legal thought.Part two: the characteristic of legal argumentation. This part has studied the five aspects of characteristics of legal argumentation: Firstly, the legal argumentation is different from the general cognitive activity, which develops the persuading and persuaded argumentation around the solution project of present cases. Secondly, from the object of the argumentation, the legal argumentation is a demonstration of the historical proposition, but obviously different from pure historical demonstration. Thirdly, "appeal to the authority" is one kind of argumentation fallacy we find in the logical textbook frequently. But in the legal argumentation, appeal to the legal authority is necessary, thus is not fallacy, but the important characteristic of legal argumentation. Fourthly, the legal argumentation is to argument the rationality and justice of resolving cases. Fifthly, the legal argumentation is one kind of just argumentation, deciding on the defeasibility of conclusion of legal argumentation. |
