Study On Uncertainty Of Legal Reasoning And The Strategies Of Reply

There are controvercies on the certainty and uncertainty of the legal reasoning, whichinvolves many factors such as logic, facts and values. The certainty of the legal reasoningdemands the stability and predictability and this is the objective requirement of the rule oflaw. However, the practice of law in the social life is always filled with uncertainty.Therefore, either the school in the18th and19th century which emphasized the certainty oflegal reasoning (such as the prevailing conceptualist view in Europe and the formalism viewin the United States) or the school in the20th century which emphasized the uncertainty oflegal reasoning (such as the Skepticism view and the Criticism view) is characterized bytheir partiality and preference in this regard. This article aims to investigate different aspectsof the legal reasoning and argues that the legal reasoning process is relatively uncertain. Itcontains four parts and the main contents of each are as follows: Part I raises the researchquestion. It points out the preconditional problems of the research on the the legal reasoning,that is, the certain and uncertain aspects about legal reasoning. In other words, it mainlyconcerns the logic vs. experience, and the strict application of rules vs. the free discretion.Part II illustrates the development from the certainty to the uncertainty on legal reasoning,the value and significance of the certainty as well as the impact of the uncertainty on thejudicial processing. Part III analyzes the manifestations and their causes of the uncertainty oflegal reasoning, and reveals the origin of the competitive challenges to the certainty of legalreasoning. Part IV mainly discusses how to overcome uncertain side in legal reasoning andhow to reconstruct the certainty in terms of analyzing the uncertainty.