법적 추론의 기능에 대한 고찰
A Study On the Function of Legal Reasoning
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The purpose of this study is to make clear what the nature and function of legal reasoning are: How judges think and what their aims are in judicial decision making. To answer these questions, cognitive characteristics of legal thinking and philosophical constructions of legal reasoning were investigated. The traditional view of adjudication regards legal reasoning as a mean to warrant a strict formal legitimacy. However, it is misleading to take the function of reasoning as finding one right answer because to the degree the law is indeterminate, judicial decisions are discretionary. The substantial function of judicial reasoning is to justify (limitedly) and predict legal conclusions. Limited justification means that the conclusion is qualified as one of the possible answers. Moreover, vague predicates in law are not obstacles for predicting legal conclusions because concepts without boundary can perform the classificatory function. These functions are irrelevant to the formal legitimacy, but they are necessary for transparent government of law and adjudication.
Abstract
The purpose of this study is to make clear what the nature and function of legal reasoning are: How judges think and what their aims are in judicial decision making. To answer these questions, cognitive characteristics of legal thinking and philosophical constructions of legal reasoning were investigated. The traditional view of adjudication regards legal reasoning as a mean to warrant a strict formal legitimacy. However, it is misleading to take the function of reasoning as finding one right answer because to the degree the law is indeterminate, judicial decisions are discretionary. The substantial function of judicial reasoning is to justify (limitedly) and predict legal conclusions. Limited justification means that the conclusion is qualified as one of the possible answers. Moreover, vague predicates in law are not obstacles for predicting legal conclusions because concepts without boundary can perform the classificatory function. These functions are irrelevant to the formal legitimacy, but they are necessary for transparent government of law and adjudication.
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