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实践中的法律推理必须注意到形式逻辑运用于法律适用的局限性,由于认识能力的有限性和认识习惯的差异性,法官难以在一次推理中以两个前提为基础做出终极性推理并依此得出裁判结论,通常要对推理的过程和结论进行反复检验,以确定其中的可靠性和有效性。法律作为一个开放体系,在过分注重形式理性层面的时候,会弱化对实践理性的兼顾,使得法律推理在法律规范的理解上缺乏应有的深度,尤其是复杂案件中适用法律规则的多重选择性及结论的非唯一性上,都决定了法官需要在事实与法律之间往返流转,必须通过反复适用法律推理才能获得妥当的裁判结论。
In practice, legal reasoning must pay attention to the limitations of the application of formal logic to the application of law. Judges can not make ultimate reasoning based on two premises in one reasoning because of the limitation of cognitive ability and cognitive habits. This leads to referee conclusions, which are often repeated tests of the inference process and conclusions to determine their reliability and validity. As an open system, law places more emphasis on formal rationality, weakens the balance of practical rationality, and makes legal reasoning lacks due depth in the understanding of legal norms, especially the multiple selectivities of applicable legal rules in complicated cases And the non-uniqueness of the conclusion all determine that the judge needs to flow back and forth between the facts and the law and that the correct conclusion of the judgment can only be obtained through repeated application of legal reasoning.