| Logic and experience are basic modes used in courts. They stand for two common methods by which the judge makes his judgment for a trial. Being distinctive in theory, they are seldom used separately in practice. Combining the two methods, the judge can get whatever results he wants. However, it is not correct to abuse them arbitrarily, because of the principle that law must be predictable, which means the judge must obey some regulations when he comes to a conclusion. Both logic and experience are ways through which judges obey these rules and the behavior of them can be predicted. The rule of law is not only the good situation of living order, but also the regular behavior of judges. Without order, judicature is no less than the arbitrary will of tyrants instead of justice and fairness. What the combination of the two methods provides is not a wider road for the judges to get his judgments but a narrower pathway to bigger certainty. At the beginning of this article is an analysis of the different characteristics of the two modes of argumentation, which is followed by an evaluation of their capacity in carrying out the certainty and predictability of the law. After an analysis of the objectivity of the legal language, the logic of the legal rules, the exactness of the legal dogma tics and the rational spirit of law, it is convinced that law is not a close and self-sufficient system, and that where the legal regulations fail to cover there will be the need for judges' discretion. We must find other social resources to combine the two modes to give regulation to judges' discretion, insofar as neither logic nor experience by themselves is sufficient in achieving the predictability of law. Moreover, as an institution in practice, legal argumentation must be based on specific social conditions, which is examined in this article through historical method. It is shown by the history of the ancient Chinese trial and the jurimetrics of the west that juridical mode must be suitable to the occasion, which includes the character of the people and the economic conditions of the society. Finally, the article discusses the possibility of establishing legal argumentation in practice, the key of which is judges' correct attitude to law. With the help of this attitude, a stabile value system can be developed through the efforts of the whole body of judges who pursue the integrity of law as a career. Once this value system comes into being, judges' discretion will not be out-of-order. Furthermore, the value system must be developed on the basis of freedom of speech, which makes sure that the system will not become a shackle for human beings. In this sense, law is the moral deadline of a society. |
