좋은 법적 논증의 조건
Conditions for a good juridical reasoning
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Legal scholars and judges often use the notion of ratio legis in oder to justify their normative conclusion or decision, whether implicitly or explicitly. They claim a ratio legis which they founded as if an objective one. As everyone knows, it is extremely difficult to specify the criteria necessary for grasping an objective purpose of the law. Although some argue that the purpose of a law can be confirmed objectively, we believe that objective legal purpose do not exist at all, because the purpose of a legal rule or ratio legis does depend on those who draft, enact, interpret, or apply the law as a necessity. From this point of view, the author believes that judges should justify their interpretation of a legal rule and adjudication with a sound and persuasive arguments or a good judical reasoning. It is hard to distinguish between a good legal reasoning and a bad judical reasoning. To find a criteria, in this paper the author introduces the notion of phronesis, techne and rhetorica of Aristotle‘s practical philosophy as a abbreviated form of Scharffs’ article, and analyses the feature of sentencing in korean criminal trial from the argumentative point of view. As Aristotle and Scharffs already stressed, the author also asserts that only in combination do practical wisdom(decision), craft(legal opinion), and rhetoric(persuasion)create a balanced, complete, compelling account of judical reasoning.
Abstract
Legal scholars and judges often use the notion of ratio legis in oder to justify their normative conclusion or decision, whether implicitly or explicitly. They claim a ratio legis which they founded as if an objective one. As everyone knows, it is extremely difficult to specify the criteria necessary for grasping an objective purpose of the law. Although some argue that the purpose of a law can be confirmed objectively, we believe that objective legal purpose do not exist at all, because the purpose of a legal rule or ratio legis does depend on those who draft, enact, interpret, or apply the law as a necessity. From this point of view, the author believes that judges should justify their interpretation of a legal rule and adjudication with a sound and persuasive arguments or a good judical reasoning. It is hard to distinguish between a good legal reasoning and a bad judical reasoning. To find a criteria, in this paper the author introduces the notion of phronesis, techne and rhetorica of Aristotle‘s practical philosophy as a abbreviated form of Scharffs’ article, and analyses the feature of sentencing in korean criminal trial from the argumentative point of view. As Aristotle and Scharffs already stressed, the author also asserts that only in combination do practical wisdom(decision), craft(legal opinion), and rhetoric(persuasion)create a balanced, complete, compelling account of judical reasoning.
참고문헌 (12)
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- Wroblewski, Jerzy, "Analytic and Semiotic Approaches to Justification of Legal Decision", International Journal for the Semiotic of Law, I(1) (1988)
- Canale, Damiano, "What is the Reason for This Rule? An Inferential Account of the Ratio Legis, Argumentation", ~ (2010)
- Allan C. Hutchinson, "Law, Politic, and the Critical Legal Scholars :The Unfolding Drama of American Legal Thought", STAN. L. Rev., 36, pp.199~ (1984)
- Aristoteles, Rhetorik, "Rhetorik" (1999)
- Brett G. Scharffs, "The Character of Legal Reasoning", Wash. & Lee L. Rev., 61, pp.737~ (2004)
- Gary Minda, "The Jurisprudential Movements of the 1980’s", OHIO ST. L. J., 50, pp.599~ (1989)
- John Schlegel, "Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies", STAN. L. Rev., 36, pp.391~ (1984)
- Lloyd L. Weinreb, "Legal Leason : The Use of Analogy in Legal Argument" (2005)
- Ruggero J. Aldisert, "Logic For Lawyers : A Guide to Clear Legal Thinking 16 (3d ed.)" (1998)
- Ingram, Peter, "Implicature in Legal Language", International Journal for Semiotics of Law, I(1) (1988)
- Shelley, Cameron, "Analogy Counterarguments : A Taxonomy for Critical Thinking", Argumentation, 18 (2004)