法律修辞与逻辑

Legal Rhetoric and Legal Logic

论者通常把修辞与逻辑对立起来,很少论及二者如何统一于论证过程,而在法律领域尤其需要这种统一。法律的学科特点在于其推理前提的开放性和结论的封闭性,因而在法律推理过程中,需要通过修辞将开放的前提集合论证为可接受的封闭性前提集合,也需要通过逻辑根据封闭的前提得出必然的结论。文章通过对法律推理过程及其特点的分析,论证了法律修辞与逻辑的统一性,即逻辑是修辞,是最具说服力的一种修辞;修辞也是逻辑,是在无法直接进行演绎推理时所备选的逻辑。其目的都在于提高法律推理结论的可接受性。

Critics generally set rhetoric against logic, rarely speaking of the way of how they unity in the process of argumentation, which is particularly needed in the legal field. The characteristics in legal field lie in the openness of the reasoning premise and the encapsulation of the conclusion. Consequently, in the pro-cess of legal reasoning, both turning open premise sets into acceptable closed premise sets by rhetoric and drawing a conclusion form the closed premises by logic are indispensable. This article mainly argues the u-nification of rhetoric and logic through the process and characteristic of legal reasoning. Logic is a kind of rhetoric, and the most convincing; on the other hand, rhetoric is also a kind of logic, which is used when deductive reasoning is not available straightway. The common purpose of rhetoric and logic is to enhance the acceptability of law conclusions.