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通常认为,法律推理是实践推理(practical reasoning)的特殊类型。所谓实践推理,是指有关人们应当做出某种行为的推理;由此,法律推理便成为在给定的可适用的规则之下,关于人们应当做出某种行动的推理。所以,法律推理的独特之处就在于法律规则在其中扮演基础性的角色。~(〔1〕)作为法律推理的具体形态之一,类比推理同样会涉及法律规则在其中的角色问题。然而,目前虽然有很多有关类比推理的讨论,但是对于这个问题的探究仍付阙如。~(〔2〕)本文正
It is generally accepted that legal reasoning is a special type of practical reasoning. The so-called practical reasoning refers to the reasoning that people should make some kind of behavior; thus, legal reasoning becomes the reasoning that people should make some action under given applicable rules. Therefore, legal reasoning is unique in that legal rules play a fundamental role in them. As one of the specific forms of legal reasoning, analogical reasoning also involves the role of legal rules in it. However, although there are many discussions about analogical reasoning, there is still a lack of inquiry into this issue. ~ (〔2〕) This article is