External Justification. Legal Judgment

The theory of legal argumentation has already become an important research inthe area of commonly argumentation, homology theory and legal logic. As thedemocratic consciousness becomes stronger, people ask for more demand for thejustice and acceptance of legal adjudication. But the level of legal adjudication'sargumentation is low, because the actualities of the legal system and the judicialpractice in our country have restricted it. Legal logic theory has not developed enoughwhich is also a reason. In order to resolve the problem, author has researched into theexternal justification of legal argumentation which depends on A Theory of LegalArgumentation from Robert Alexy.This paper has first introduced the research history of legal argumentationtheory. Then author has studied the concept of legal argumentation theory secondly,because we should seize the concept before we start our study rightly. The lemma oflegal argumentation theory is to provide a series of argumentation regulations forrational legal argumentation. These regulations are in order to ensure every one candiscuss correlative legal problems rationally during the process of legal argumentation.After that, argumentation activities can carry through rationally and solemnly, judicialdecisions can avoid opinionating attitudes and set up them on the basic of sufficientargumentation. So its aim is to set up a legal deliberative mechanism rationally andprocedurally.After learning the concept of legal argumentation, author starts to explain thelegal argumentation theory of Alexy. From intemal justification to externaljustification, author elucidates the six regulations and their modalities of externaljustification separately, because external justification is the main part of this paper andthe regulations of internal justification are premise and foundation of externaljustification. People think making the legal judgment is a mysterious thing, and manyjudgments haven't described the process of argumentation from the judge, so it makesus to think that the judge making the judgment is an optional thing. Therefore we should introduce legal argumentation theory during the process of making legaljudgment. When arguing, we should extrude objectivity and justness, we should relaterules of law and the fact of case, then offer major premise for the judgment. Internaljustification theory mainly relates to legal reasoning, it shows how logic methodswork concretely, so it is referred as "legal syllogism" as the core of legalargumentation. But it makes many people ignore the importance of externaljustification. Without external justification justificates the major premise of internaljustification firstly, the justification of internal justification can't be ensured.Many domestic scholars consider the legal argumentation is a legal method, andit should be studied as a kind of legal method. Author thinks that legal argumentationshouldn't be a legal method in doing research, in other side it should include legalhermeneutic and legal reasoning etc. The viewpoint is also Alexy's idea. Legalargumentation must be a course during which judge judges cases using legalknowledge and him self's practice experience. So the course of judge judging cases isrelated with argumentation nearly. Using logic, social and canonical means to studythe legal argumentation issues of judicial judgment in China, and to analyze theinfluence which the conformation of legal argumentation producing on judicialjudgment, author founds the aims which should be enacted and the criterion whichshould be requested of establish legal argumentation system during the judicialjudgment in China.