Research On The Autonomy Of Legal Argument

The autonomy of legal argument mainly includes the following four groups of questions: The first group of questions,what is the concept of autonomy of legal argument? What are the dimensions of the autonomy of legal argument? The second set of questions,how do these dimensions manifest in judicial practice and theory of the legal argument? The third group of questions,what are the dilemmas faced by the autonomy of legal argument? How to resolve this dilemma? The fourth group of questions,what tools should be used and how to realize the autonomy of legal argument in which controversial areas? These four groups of questions are four groups of progressive levels,and they are also the core issues of the research on the autonomy of legal argument.As far as the first group of questions is concerned,to define the concept of autonomy of legal argument,one must first define the concepts of legal argument and the autonomy of law separately.The concept of legal argument includes three versions: narrow,medium and wide.The research on the autonomy of legal argument involves a narrow version of the concept of judicial argument.The autonomy of law has a negative aspect and a positive aspect,as well as Realized State,Imperfect State and Improvable State.Correspondingly,the autonomy of legal argument also includes these two aspects and three states.The common basis of the two aspects and the three states is the dimension of objectivity,the negative aspect emphasizes the dimension of independence,and the positive aspect emphasizes the dimension of self-sufficiency.These three dimensions make the autonomy of law a comprehensive concept that is constantly evolving in history.However,it is still necessary to examine the specific manifestations of these triple dimensions.This also leads to the second group of problems in the study of the autonomy of legal argument.As far as the second group of issues is concerned,in the field of judicial practice,objectivity is manifested in the objectivity of document production requirements,the objectivity of legal norms interpretation,and the objectivity of case fact determination.In the field of argument theory,objectivity is manifested in the objectivity of the departmental law’s argument theory,the objectivity of the legal argument theory,and the objectivity of these two research objects.Two kinds of objectivity ensure the dimension of objectivity.In the field of judicial practice,independence is manifested in the independence of the exercise of the court’s judicial power,the independence of judges’ legal argument,and the independence of judges’ skills.In the field of argument theory,independence is manifested in the comparison of legal argument to daily life argument.Independence,compared with the independence of other professional argument,and the independence of the pursuit of goals in legal argument.The mutual influence of these two kinds of independence guarantees the dimension of independence.In the field of judicial practice,the dimension of self-sufficiency is manifested in the adequacy of the argument from the perspective of the speaker,the acceptability of the argument from the perspective of the audience,and the supervisory function of the professional community.In the field of argument theory,the dimension of self-sufficiency is manifested in the selfsufficiency of internal justification,the self-sufficiency of external justification,and the self-sufficiency of two levels of mutual cooperation in legal argument.Two types of self-sufficiency are supported by resonance,which guarantees the dimension of self-sufficiency.However,the three dimensions have been questioned a lot,and it is necessary to explore ways to resolve them.This leads to the third group of questions in the study of the autonomy of legal argument.For the third set of questions,the three dimensions of objectivity,independence,and self-sufficiency encounter theoretical dilemmas that require responses.The objective dimension of the autonomy of legal argumentation faces the dilemma of ontology and epistemology,and needs to be responded to by the rule of law theory as institutional facts and fictional constraints.The independent dimension of the autonomy of legal argumentation faces the dilemma of norm source and norm application,and needs to be responded to through counterfactual normative theory and independent adjudication theory.The self-sufficiency dimension of the autonomy of legal argumentation is faced with the dilemma of norm source and norm application,which needs to be responded to by the intermediary equivalence and argumentation sufficiency theory of legal source.However,the autonomy of the external justification of legal argumentation has only been guaranteed in general terms,and specific guarantee tools are still needed.For this reason,the fourth group of issues in the study of the autonomy of legal argumentation needs to be drawn.As for the fourth group of questions,Toulmin’s legal argument model can be reconstructed by specializing Toulmin’s argument model in the legal field.The three kinds of argument:the argument of consequence,the argument of principle and the argument of analogy.They are the core dispute areas where the autonomy of legal argument is questioned.For this reason,the argument of consequence,the argument of principle and the argument of analogy must be examined separately in the new model.The "consequence" in the argument of consequence refers to the general consequences arising from the application of legal rules in the process of legal argument,not the specific consequences produced by individual cases.Combining the rules and formulas derived from the new model,one can choose the interpretation with the best consequence from a variety of interpretation possibilities.The "principle" in the argument of principle refers to a legal principle that is qualified to provide the normal prerequisites for judicial judgment,and is not a legal principle that simply serves as a reason for the application of legal rules.Combining the rules and formulas derived from the new model,the legal principle corresponding to the most sufficient reason can be selected from the reasons supporting different principles.The "analogy" in the argument of analogy includes two levels:the analogy of case facts and the analogy of legal rule.In combination with the rules and formulas derived from the new model,appropriate analogies can be made.Respectively applying these formulas and rules of the new model to Guiding Case No.23,Sichuan Luzhou Legacy Case,and Guiding Case No.24 can effectively enhance the adequacy of the legal judgments in the aforementioned cases.Through the discussion of the four groups of issues,the research on the autonomy of legal argument has been completed.