A Study On The Application Of Dialectical Reasoning In The Judicial Process

Dialectical reasoning has gradually entered the field of vision of our scholars,scholars become the object of research and discussion.Dialectical reasoning is not only used in the judicial process,but also in the legislative process and law enforcement process.This article mainly studies the application of dialectical reasoning in the course of judicial process,that is,the process of judges’ referee cases,taking Bodenheimer’s research as the theoretical basis and combining with practical cases.The process of dialectical reasoning has uncertainties,but it can not prohibit the use of dialectical reasoning.Compared with the formal logic of formal reasoning,dialectical reasoning on the use of value judgments and the measurement of interests,making the case the results of the referee is not only legitimate and reasonable.Compared to a judgment that gives the parties justice,one can solve the verdict of the parties’ knot,and better reflect the credibility of the judicial process.But the application of dialectical reasoning determines that it can not be the only reasoning activity as a result of formal reasoning.The form of reasoning(rules of law + legal facts = verdict)is derived from the rule of law as a prerequisite(legal premise)and legal facts as a small premise.And the reasoning process of dialectical reasoning is not formal logic,is not rigorous.In the process of reasoning,due to the uncertainty of the legal rules,the flexibility of the dialectical reasoning method,the legal rules of the case used in the case of uncertainty,the judge can not avoid the emotional intervention caused by thinking caused by excessive impact Factors,will lead to the results of the referee case is not the only correct result.It can be seen that the use of dialectical reasoning to find applicable law,it must be subject to certain constraints.Depth study of the dialectical reasoning method,understand its structure,context,attention to the use of dialectical reasoning in the judicial process,combined with the value judgments and the measurement of interest and other irrational factors involved in finding suitable legal premise to provide an effective solution.In the judicial process,the study of dialectical reasoning can be regarded as the study of the law.The process of applying the dialectical reasoning method is the process of the judge seeking legal rules and finding the premise of the case.This paper is divided into four parts.The first part mainly discusses the origin and theoretical basis of dialectical reasoning.The theory of dialectical reasoning emerges with the emergence of social activities and develops with the development of social activities.In the natural evolution of history,due to the rigidity and mechanics of formal reasoning,dialectical reasoning has been paid more and more attention.Scholars generally believe that dialectical reasoning is not only as a kind of thinking activity as a method exists.In judicial practice,dialectical reasoning has a complementary function.The second part discusses the application and significance of dialectical reasoning in the judicial process.This part is the focus of this article.In the judicial process,dialectical reasoning does not act alone as a legal method.Dialectical reasoning and formal reasoning,legal interpretation,legal argumentation,value judgments and the measure of interests are used in conjunction with the search for applicable law.Dialectical reasoning and other legal methods linked together,interrelated,complement each other,mutual restraint,so that the case referee has the law,in the maintenance of legal universality while ensuring case justice.The introduction of other legal methods restrains the flexibility of dialectical reasoning,prevents the misuse of dialectical reasoning,compensates the limitations of the law,and promotes the reform and innovation of the law.The third part takes into account the current situation and problems of dialectical reasoning in the judicial process.In the judicial process,although the guiding case is an informal legal source,but also can be used as a basis for the law.With the emergence of our guiding case in the referee case the judge will proceed from the guidance case,looking for legal premises.There are many controversies about the use of value judgments in dialectical reasoning.Some scholars believe that the use of value judgments will lead to too much intervention in subjectivism in dialectical reasoning,resulting in the phenomenon of dialectical reasoning abuse.Clarification of the scope of value judgment helps to reflect the best interests of legal rules.There are still many problems in the process of dialectical reasoning,the uncertainty of the applicable rules of law and the flexible and diverse basis of the application of legal rules are two typical problems.These two problems are also likely to lead to the misuse of dialectical reasoning.Starting from these two issues,the basis for the control of the rules of law can also play the effect of restraining dialectical reasoning.The fourth part is the application of normative reasoning.Dialectical reasoning standards,operational standards,evaluation criteria The process of using dialectical reasoning is the process of practicing justice.The use of dialectical reasoning in the context of conflicting legal rules,conflicting legal rules and loopholes in legal rules,the development of evidence,dispute settlement and social control functions and predictive functions,and the search for applicable law according to the applicable law Rules,to make up for the lack of legal rules.At the same time,it also regulates the application of dialectical reasoning from two aspects: judging the correctness of legal rules and judging the practicality of legal rules based on judicial practice.Through the discussion of these four parts,it clarifies the scope of application of dialectical reasoning and how to regulate it,and can help prevent the use of dialectical reasoning in the actual abuse.Dialectical reasoning is a kind of thinking is a method.The application of dialectical reasoning in the judicial process can to ensure that new,difficult cases have complicated laws,and it can guarantee the justice of the case.At the same time,using dialectical reasoning to maintain the universality of the law can to protect the justice of justice.