2023-10-08
from：上海交通大学凯原法学院
preview：
Justification: A Study on the "Pre proposition" of Chinese Trials
Content Introduction: This book is a work on intention analysis and "reasoning" as the "pre proposition" of Chinese trials. Starting from the concept of "achieving the organic unity of legal and social effects" advocated by Chinese trials, combined with the current policy requirements and practical status of emphasizing the interpretation and reasoning of judicial documents, this book proposes the "pre proposition" of Chinese trials based on "reason reasoning", providing intellectual resources from jurisprudence and legal sociology to explore topics such as "why Chinese trials should reason" and "how Chinese trials should reason".
Author Introduction: Chen Zhaoxin, Chenhui Scholar, Master's Supervisor, Law Doctoral, and Researcher at the Sociology Postdoctoral Mobile Station of East China Normal University Law School. The main research areas are jurisprudence and legal sociology.
catalogue
introductionChapter 1 Social Background of Justification
Section 1: Pursuing the Modernity Foundation of Reasoning
Section 2: "Emotion" and "Reason" Norms in Traditional Chinese Legal Order
Section 3: Non adversarial evidence of "reason" and law in modern Chinese trials
Chapter 2 Dialogue Conditions for Justification
Section 1 Benchmark Framework: Reconciling Value Conflicts through Procedures
Section 2 Practice Path: Reconciliation of Legalism and Consequentialism
Chapter 3 Normative Analysis of "Reasons"
Section 1 Concept of Reason for Conduct and Its Normative Significance
Section 2 Analysis of Types of Normative Behavioral Reasons
Section 3 Classification of Behavioral Reasons
Chapter 4 Justification of Justification
Section 1 Legal reasons for behavior
Section 2 Logical Justification of Justification
Section 3 Practical Evidence of Justification
Chapter 5 Type Construction of Justification
Section 1he first section "Thesis" as the methodological starting point for reasoning
Section 2 Legal argumentation based on the "topic analysis" formatSection 3: Argument Forms of "Justification"
Section 4 Repellability of Justification
conclusion
Preface 1
Zhaoxin has been following me for master's and doctoral programs since 2015. Among his disciples, he has a clear problem awareness and is diligent in his work. After studying, he can always "understand the essentials and eliminate the complexity", leaving a good impression on me. His professional interest has always focused on the important theme of legal argumentation, starting from the right to defense in the master's stage and examining the reasons for discussion and the institutional conditions for dialogue from different perspectives in the doctoral stage, gradually progressing layer by layer. He is good at learning and utilizes existing theoretical frameworks to shorten the trial and error process, achieving twice the result with half the effort; But he is not limited to his own opinions and can always find appropriate analytical fulcrums to distinguish new ideas and outline several proud strokes. It is gratifying that within five years, he successfully obtained his doctoral degree and immediately went to teach at the Law School of East China Normal University. The entire process was smooth and seamless. Now that his doctoral thesis has been revised, supplemented, and improved before it is officially published, it is incumbent on me to write the preface. By the way, it should be noted that the original manuscript was recommended by the law school to receive the nomination award for an excellent doctoral thesis from Shanghai Jiao Tong University, which also shows that my appreciation for him is not solely based on protecting the calf.The starting point of this book's argument is the judicial policy of "achieving the organic unity of legal and social effects", which balances the interpretation and reasoning of law with the measurement and coordination of interests. To achieve this, it is necessary to reason and communicate between rules and reality, that is, to argue and argue for their respective reasons. If the social background of the relevant reason argument refers to the public cooperation mechanism based on the premise of free or free individuals, then the necessary institutional condition for achieving argumentative dialogue should of course be the legal and just procedure; In the above sense, it can also be said that reaching a consensus through discussions that meet the procedural requirements constitutes the most important legitimation mechanism for the operation of the law. However, in Chinese cultural tradition, emotion and reason are considered as both integrated standards and legitimate grounds; If substantive factors such as reason and reason are also incorporated into legal discourse, it will inevitably complicate the process of reasoning. Therefore, it is particularly necessary to use practical philosophy as a medium to discard the paradoxes caused by complexity, that is, practical rationality should be regarded as the rationality of legal argumentation activities, and cannot be limited to legal provisions and logic. Starting from this, it is necessary to examine the structure of legal arguments to determine the standards, and McCormick's "Legal Reasoning and Legal Theory" and Alexi's "Legal Argumentation Theory - Rational Argumentation Theory as Legal Evidence Theory" provide a contrasting reference system. It is obvious that the proposition of "argumentative sociology of law" regarding procedural standards can be further extended from here.
Although Zhaoxin has adopted a broad perspective and thinking method of sociology of law to some extent, his academic activities are still based on legal hermeneutics or jurisprudence. The chapter outlined in this book is also a normative analysis and justification of the reasons that serve as the object of argument in the context of normative cracks and practical differences. The reason for lively "legal discussions" around the reasons for argumentation is to reach consensus on value judgments; From the perspective of value or norms, the ancient legal techniques of debate and rhetoric still have more important significance for the discussion of rationality. It just needs to be noted that there are significant differences within the practical philosophy that focuses on legal discourse, whether it emphasizes "reasoning" or "discussion"; McCormick's theory and Fiwig's theory belong to the former, while Alexi's theory, Habermas' theory of truth consensus, and even Luman's theory of the essence of communication belong to the latter. Since this book clearly sets the range of interpretation and reasoning in defense and trial, the author will inevitably focus more on the previous lineage, attempting to further examine and elaborate on the process of discovering norms in court and legitimizing judicial judgments through comparative deductive discourse. However, in the content that analyzes the types of argumentation and the revocability of argumentation reasons, readers can find that although the author did not specifically elaborate on the public's discussion of legal arguments - "social discourse", he still demonstrated the openness and selectivity of argumentation conclusions through inclusive positions that emphasize "discussion". Obviously, if the correct conclusion in legal discourse can be plural, it means that there is no prerequisite for substantive judgment, which is a completely procedural attitude. Here, the rationality of the discussion process will become a focal point, and a certain procedural concept can also be permeated in the discussion.
It can be imagined that when reasoning is not limited to the rules and forms of internal justification, but also includes external justification of relevant premises, empirical discussion will inevitably occupy an important position, thus bringing the so-called "social reasons" into legal discourse. The scrutiny of social reasons should promote empirical research on legal phenomena and functions. It will also emphasize comparative analysis of cases, focus on interactive relationships around trials, and examine policy considerations and ideological influences in reasoning. These are all areas of interest in judicial sociology. The basic feature of legal sociology is to criticize dogmatism from the perspectives of facts and practice, especially among leftists and postmodernists (such as Duncan Kennedy) who point their criticism towards the hidden ideology in judicial judgments. But on the other hand, there is also a non deductive path, as shown by the Turmin model of argument: starting from the inherent position of legal hermeneutics, applying inductive negation methods rather than deductive reasoning methods to law through discussion, while always maintaining a posture of dueling formal logic. In fact, I published an article titled "New Paradigm of Social Science Research in Legal Discussion" in the 6th issue of China Law in 2015, which also aimed to promote and discard the differences between legal sociology and legal hermeneutics through legal discussion, and to implement reflective rationality based on practical experience into norms and value judgments. Along this line of thought, the sociological perspective of law understood in this book is to further define legal discourse as an external description of legal argumentation, highlighting the attribute of discourse practice giving reasons for action, but distinguishing it from "social discourse", and even having a tendency to confront each other. In this way, this book further highlights the boundaries of legal norms research, while also being able to jump out of the professional perspective to a considerable extent. I hope that Zhaoxin can continue to grasp the core topic of legal theory and conduct more in-depth exploration on the basis of extensive exploration, striving to find the best combination of procedure and argumentation through the method of inductive verification, thereby achieving the systematization of legal argumentation theory and promoting innovation.
From a methodological perspective, as explicitly pointed out by the author himself, this book does not conduct empirical investigations and empirical summaries of the current situation of judicial reasoning in China. Instead, it is based on practical philosophy and integrates current theoretical research on reasoning, argumentation, and argumentation by elaborating and analyzing the conceptual basis of "reasoning", Attempting to propose an analytical framework for reasoning that is suitable for the needs of Chinese trials based on the universality of reasoning, as a reference frame for reflection and reform. However, it should be emphasized that in order to make the theoretical work more relevant to judicial practice, avoid the hollowing out of core concepts and the deductive bias that Turmin fears, Zhaoxin has actually conducted some typical case studies and formed several analytical papers. In this sense, it can also be considered that the discussion in this book has to some extent been baptized by the author's own empirical analysis and inductive verification. Of course, after publication, a work has its own life detached from the author, and it needs to further accept the "second-order observation" and the baptism of criticism or applause from a large number of readers. In a sense, the repeated interaction and communication between the author and the reader is also a reason to argue that reflective rationality, as a prerequisite for academic prosperity, as well as works that can withstand practical and historical tests, will thrive in this atmosphere of social discourse and choice space.
It is in sequence.
Ji Weidong
2022 Advent Season（Ending of the Dog Days）
Preface 2
Jurisprudence is a discipline that studies fundamental issues of law and explores general principles of law. For many years, the academic community has failed to reach a broad academic consensus on how jurisprudence guides departmental legal practice and how to respond to real-life legal issues and find theoretical solutions, leading to the formation of a trend where jurisprudence is gradually distancing itself from departmental law and becoming "other legal studies". So, the voices of questioning "whether jurisprudence has died" and "how jurisprudence regenerates" occasionally appear. This book can be seen as an attempt to respond to these voices.In my opinion, Chinese jurisprudence should continue to make efforts on the following two issues: firstly, to explore the relationship between the state, the law, and the rule of law, and to optimize the institutional cornerstone of good law and good governance; Secondly, based on practical needs, construct a theoretical analysis framework for China's legal profession and judicial activities. The intersection of these two issues is the normative issue of legal professional practice. Legal professional practice is a practice based on the law, where the normative nature of the law is transmitted to the legal profession and becomes a legitimate source of legal practice. A legal person is a model of strict or even mechanical application of the law. But as is well known, legal professionals need to use their own practice to clarify the edges of the law, and also need to fill legal loopholes through professional legal interpretation and operation techniques. In China, the fragmented structure of the legal interpretation system and the minimalist style of legislation have created conditions for legal professionals, especially judges, to develop legal rules and refine the legal system through legal interpretation. Judges' interpretation of the law not only needs to follow the general requirements of legal interpretation and reflect the intention of the maker of the legal text, but also needs to make the interpretation of the law a material for educating the public to obey the law and providing future legislators with the development of the law. To achieve this goal, the legal profession, including judges, not only needs to make legal interpretation their own, but also to organically integrate legal interpretation with public emotions and social norms, so that the law can truly play its role in guiding behavior and educating compliance with the law. Therefore, it is necessary for the judge to explain the reasons and make them widely available to the public, so that the judge can accept the evaluation of legal peers and the public, and establish the authority of the law, the court, and the legal profession in peer review and public debate, in order to implement the rule of law and achieve results.
Reasoning based on reasons is a perfectly normal thing. It is only necessary to "reason" in the judgment, not only to explain the legal principles, but also to take into account the daily life experience of the public and respect the simple and even traditional intuitive cognition of the public. Only in this way can we avoid the suspicion of mechanical law enforcement brought about by strict dogmatism and the accusations of perverting the law brought about by flexible legal realism. For example, in cases such as the "University Student Digging Bird's Nest Case", which is widely known to legal professionals, the key to the public's attention or even criticism of judges is not that they did not strictly apply legal judgments, but that when faced with the huge gap between legal provisions with social management order and daily life, judges did not actively explain reasons to fill the gap between legal provisions and life experience. The reason why "frozen embryo cases" and "elevator smoking prevention cases" have gained social recognition is that the reasoning of these cases can not only clearly express the legal position, but also reflect the respect and comity of the law towards other social norms. It can be seen that the starting point of the judge's explanation of reasons is to effectively respect the independent status of each member of society and their subjective qualification to make judgments independently, and then ensure that the rights and claims of the parties are fully reflected according to the litigation procedure.
It is at this point that judicial reasoning is not only linked to the generation mechanism of legal norms, but also to the more abstract concept of "practical reasons". This is a major highlight of this book's research. The development of the rule of law and the evolution of the understanding of the rule of law concept is a theoretical undertaking that organically combines practical experience with legal logic. It is necessary to achieve the integration and coexistence of experience and logic, reason and history through extensive historical experience and practice. Logic is rooted in law, but experience comes from practice. Therefore, the key to trial lies in mobilizing judges, parties, lawyers, and other social forces to screen out reasons that meet the needs of logic and can withstand practical testing, as well as their argumentation plans. The theoretical composition presented in this book may seem lush, but in reality, it always closely follows the keyword "argument for reasons", and vividly unfolds the grand narrative of argument for reasons and the analysis of the changes in Chinese advantageous legal discourse. It sorts out the conceptual lineage of behavioral reasons and legal argumentation schemes based on practical rationality, and even provides a detailed technical operation analysis of argument for reasons in the field of artificial intelligence legal modeling. At this point, 'justification' can also be seen as a set of Chinese practical solutions for Dworkin's' holistic approach '. To some extent, it is also possible to observe the author's academic interests as a normative pursuer through this book. This book is committed to constructing a practical normative research framework centered on the practice of the legal profession as the main axis and with "explanation of reasons" as the core. It also draws on the strengths of others and is not limited to the boundaries of disciplinary paradigms. Instead, it aspires to bridge the boundaries between disciplines. This not only creates conditions for exploring the Xinjiang region of jurisprudence and legal profession research, but also adds many eye-catching theoretical insights to this book.
From this perspective, the true ambition of this book may not be to provide a theoretical reference frame for Chinese judicial practice as mentioned in the book, but to attempt to bridge the barrier between the "reason" of practical philosophy and the "reason" of legal methods using the keyword "reason argument". Of course, the feasibility of such a plan depends not only on the opinions of experts in the field of legal philosophy, but also on the collision of ideas from ethics and sociology, making this book an academic "target" that sparks ideas.
After joining the workforce, Zhaoxin grew rapidly. In the process of following me in conducting postdoctoral research in the fields of legal profession and social governance, he is diligent, agile, and practical, and can truly feel his loyalty and love for academic research and teaching profession. Zhaoxin comes from Guangdong and received a bachelor's degree in law education in Chongqing. He was also influenced by the academic style of the Shanghai school in Shanghai. These experiences have given his research both a theoretical and historical sense of "the endless rolling flow of the Yangtze River", as well as an excellent quality of "daring to be the first in the world". Faced with such a research achievement that combines practical philosophy with legal methodology, jurisprudence, and other disciplines, we certainly have reason to hold a positive and open attitude towards it and its subsequent expansion. We are also willing to believe that this research will become a precursor to better and more academic achievements in the future.
Zhang Zhiming
September 2022