设证推理的正当性及其运作——基于司法过程的考察

On the Justification and Operation of Abductive Reasoning:An Investigation Based on the Judicial Process

作为一种重要的法律推理形式,设证推理的基本过程是在已经具备某种前提性结论的基础上寻找对该结论的最佳解释。从司法过程的运行来看,双方当事人为维护自身利益而寻找任何理由能够支持其主张的过程,实质上就是设证的过程,它有别于从法官视角出发的归纳或者演绎推理,从这个意义上说,设证才是司法过程的"真相"。从具体运行来看,设证推理是一个对原初结论不断进行修正的过程,最终形成判决结果。

As an important form of legal reasoning, abductive reasoning starts from the certain hypothesis as the premises to seek the optimal explanation. In terms of the judicial process, the two parties try to look for any rea- sons to justify their own claims so as to maintain their self-interests, which is in fact the process of abduction that is different from induction and deductive reasoning. In this respect, abduction is considered as the truth in the judicial process. In the light of the practical .operation, abductive reasoning means the process of continuously correcting the initial hypothesis till the formation of final verdict.