阿列克西法律论辩理论及其逻辑难题——从非形式逻辑的角度探寻法律论辩中的逻辑基础

Alexy's Theory of Legal Argumentation and the Analysis of the Logical Paradox

阿列克西法律论辩理论是法律逻辑、论辩理论、人工智能与法等领域经常讨论的理论。这个理论的基础是一般实践话语理论,本文对一般实践话语理论及其理论来源进行了梳理,总结了法律论辩理论与一般实践话语理论的关系,就法律论辩理论中内部证成与外部证成的结构与配合机制进行了阐述。本文针对内部证成可能遇到的约根森二难,讨论了形式逻辑的解决方案及其不足,并根据形式逻辑的不足提出了非形式逻辑的解决进路。最后,本文简要阐述了法律论辩理论与法律逻辑的关系,指出非形式逻辑可以为法律论辩理论提供逻辑基础,并共同为当今蓬勃发展的人工智能与法提供理论支持。

The theory of legal argumentation which proposed by Robert Alexy has been discussed in the field of legal logic, argumentation theory and AI and Law frequently. The basis of this theory is the general practical discourse theory. This paper has discussed the general practical discourse theory and its theoretical sources, and concluded the relationship between the general practical discourse theory and the theory legal argumentation. And this paper also has elaborated the structure and cooperation mechanism of internal and external justification. The Jorgensen＇s dilemma with which the internal justification probably encounter has been analysed. The solution of formal logic to this problem is discussed, and the deficiency of the solution has also been put forward. In order to deal with the dissatisfaction of formal logic in the legal discourse, the approach of informal logic has been proposed. Finally, the relationship between the theory of argumentation and legal logic has been discussed, and this paper advocates that informal logic could support the theory of legal argumentation forcefully, and if the two could combine to each other, the development field of AI and Law would also benefit from the combination.