法律推理基本形式的结构分析
雷磊法律推理基本形式的结构分析
A Structural Analysis of Basic Forms of Legal Reasoning
期刊名称：《法学研究》
期刊年份：
作者：雷磊
单位：中国政法大学法理学
中文关键词：法律推理;涵摄;权衡;类比
英文关键词：subsumption;balance;analogy;stage of argumentation;discursive
中文摘要：
法律推理理论的核心在于结构问题，而对推理基本形式的研究正是围绕这一点展开的。考夫曼的“四分法”模式与阿列克西的“三分法”模式为此提供了很好的出发点。相比之下，后者的分类更为可取，但仍然存在问题。在规范性论证视角下，法律推理的基本形式必然要体现出论辩理性的特点。为此需要划分不同的论证阶段与论证前提来分别对应涵摄、权衡与类比这三种基本形式。它们构成了法律推理之规范性模式的组成部分。
英文摘要：
The core of theoretical problem about legal reasoning lies in its structure, on which the present studies on basic forms of legal reasoning concentrate. Legal Reasoning describes a process, during which men apply legal reasons discursively und inter-subjectively aiming at a rational conclusion. Taken those presuppositions, the basic forms of legal reasoning should have three characteristics, viz. formality, necessity, and specificity. The “Four-divided Model” by Arthur Kaufmann and “Three-divided Model” by Robert Alexy provide both good starts for this research. Comparatively, the latter model is sounder, but there remain some demerits with it. On the one hand, only subsumption (deduction), balance and analogy share above three fundamental characteristics of legal reasoning. Thus understood, on the other hand, they have hitherto not yet been inserted into a dynamic procedure of legal argumentation. As normative argumentation, basic forms of legal reasoning are bound to reflect the nature of discursive rationality. Thus we have to establish some new analytical prerequisites, that is, the structure distinction between legal rules and legal principles, the judgment of the existence of rule holes and its relation with rules, and the different corresponding relations between the stages and premises of legal reasoning and the basic forms of it.Subsumption is apt to the first (“construction of arguments”) and third (“reconstruction of arguments”) stages, in the meanwhile men should remember well that the structures of these two stages are different. Balance applies to the second stage (“cross attacks of arguments”), and analogy, when thought as the chief mean and method to fulfill rule hole, just strides across two stages, viz. construction of arguments and reconstruction of arguments. Subsumption stands at the beginning and the end of balance process, while it is yet connected to the upshot of analogy course. Analogy, when major premises with “relevant similarity” have been found, can be transformed into subsumption. Through partial reducibility thesis, analogy can also be transformed into balance. Subsupmtion, balance and analogy constitute an integral part of a normative legal reasoning model.
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