Legal Logic Research. Volume 1

Author: Liang Qingyin
Publisher:
Publish Date: 2005-07-01
Features: For a long time, there have been two logics concerning legal argumentation: one is formal symbolic logic, and the other is argumentation theory. The former emphasizes correctness, controllability, and certainty, while the latter emphasizes opinion conflicts, evaluative choices, and rational selections. The rise of non-formal logic has established the legitimate status of argumentation theory within the framework of logic. It can be predicted that this will inevitably trigger the third shift in the study of legal logic in China—the non-formal turn of legal logic. According to the literature currently available, the term "legal logic" was first proposed by the German logician Ulrich Klug in his book Legal Logic (1951). In his view, legal logic is the application of formal logic in the field of legal science. Since "formal logic only studies form and does not concern content," Engisch (1959) proposed "substantive legal logic"; Simitis (1960) proposed the idea that "legal logic is essentially non-formal"; Heuer (1961) proposed the idea that "legal logic is essentially deontological"; and Perelman (1960) proposed the view that "legal logic is a non-formal logic." The study of legal logic in China has generally gone through three stages and realized two shifts.
The first stage is the traditional logic research method stage. This stage primarily adopted the research framework of "explaining specific examples in the legal field using traditional logic principles." It basically did not involve the construction of a legal logic system. This research method made certain contributions to the initial development of legal logic studies in China.
The second stage is the modern logic research method stage. Under the perspective of "logic needs to be modernized," some scholars began to boldly explore the path of "modernizing legal logic," giving rise to a group of legal logicians who specialized in studying legal logic based on von Wright's deontic logic. They attempted to construct a legal logic system close to modern logic. However, this research method yielded little success in establishing legal logic, though it made contributions to enriching the study of philosophical logic. Its practical significance was not fully recognized by the legal logic community, especially the jurisprudence community. Nevertheless, this research method kept pace with the development of logic. Especially during this stage, the study of legal logic in China realized a shift—the modernization turn of legal logic.
The third stage is the jurisprudence research method stage. Since formal logic cannot solve the non-monotonicity of legal reasoning, the American jurist L. Thom McCarty proposed that the study of legal logic should start from law rather than from formal logic. As a result, jurists introduced the concept of "substantive legal reasoning" to address the shortcomings of "formal legal reasoning." Correspondingly, Chinese legal logicians also proposed the advocacy of "legalizing legal logic." This is the second shift in Chinese legal logic—the jurisprudential turn of legal logic.
For a long time, there have been two logics concerning legal argumentation: one is formal symbolic logic, and the other is argumentation theory. The former emphasizes correctness, controllability, and certainty, while the latter emphasizes opinion conflicts, evaluative choices, and rational selections. The rise of non-formal logic has established the legitimate status of argumentation theory within the framework of logic. It can be predicted that this will inevitably trigger the third shift in the study of legal logic in China—the non-formal turn of legal logic. Some papers in this book have already made attempts in this regard.