Logics for Legal Argumentation
报告人: 熊明辉 教授（中山大学）
时间：2011年11月5日(星期六） 10:00 — 12:00
摘要: This topic about logics for legal argument stems from Protagoras, who is the first sophist in Ancient Greece and presented the paradox of the court. In Aristotle’s logical works Organon, what his treatise On Sophistical Refutations discussed is how to refute sophist’s argumentation and to discover their fallacies. In 1588 Abraham Fraunce published the Lawier Logike exemplifying the praecepts Logike by the practise of the common Lawe. In his poem, he said, “I see no reason, why that Law and Logike should not bee. The nearest and the dearest freends, and therefore best agree.…… I sought for Logike in our Law, and found it as I thought.”
As a symbol of legal realism, Jr. Oliver Wendell Holmes said in 1881, “The life of the law has not been logic; it has been experience”. Therefore, most scholars have wrongly thought that Holmes tried to reject the important role of logic in the law up to now. However, it is not what Holmes really wanted to say. On the contrary, in 1897 Holmes stressed that the training of lawyers was a training in logic and the language of judicial decision was mainly the language of logic. Interestingly three book reviews were published on the Columbia Law Review’s 31st issue of 1931after Jerome Frank’s book Law and the Modern Mind was printed. Karl Llewellyn thought Frank’s idea was keen, cogent and well-integrated; therefore, logic lost its function in the law domain, while Mortimer J. Alder claimed that legal certainty need to be maintained by formal logic and judicial decision was the outcome of deductive logic. But Walter Wheeler Cook thought Frank hadn’t actually denied the role of formal logic in the law but was trying to show how lawyers had misconceived and misused formal logic.
The systematic study of logics for legal argument started from the middle period in last century, i.e., after Ulrich Klug published his book Juristische Logik in 1951 and Lee Loevinger issued his paper ‘An Introduction to Legal Logic’. Since then, logics for legal argumentation have been going forward along two paths – formal and informal. The former is based on formal logic while the latter’s basis is informal logic or argumentation theory. Absolutely, both Klug and Loevinger regarded legal logic as an applied modern logic while as an applied traditional logic before their theories. In 1958 Cha?m Perelman et al and Stephen Toulmin published respectively Traité de l’argumentation, la Nouvelle Rhétorique and The Uses of Argument. It is they that opened up the path to study logics for legal argumentation from a perspective of non-formal logic. Although some scholars who are walking on the two roads seem to understand each other sometimes, we think it is possible to integrate the two lines. In this talk, we will show this kind of possibility.