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法律推理是法学家和法律工作者在各自的工作中经常运用的一种思维方式,是施行法律,特别是司法机关适用法律过程中的一个重要活动。 对于法律推理,我国的法学理论界很少进行研究,认为那是属于法律逻辑学者的“专利”。但由于法律逻辑学是一门新兴的交叉科学,法律逻辑学者的注意力一时还没有集中到此问题上来。只是近几年来,有一些学者借鉴国外(英、美、德及前苏联、东欧等国)关于法律逻辑的研究情况,认识到研究法律推理问题的重要性,提出了法律逻辑的核心问题应是法律推理问题。但认识与研究并不是一回事,学者们对法律推理的研究还是少之又少,这显然与法律推理的地位不相称。本文作者试图在此方面作一些探索,以期引起大家的兴趣。
Legal reasoning is a way of thinking often used by jurists and legal workers in their respective jobs. It is an important activity in the implementation of law, especially in the judicial system. For legal reasoning, our country’s legal theorists seldom study, that it is a “patent” of legal logic scholars. However, due to the fact that legal logic is an emerging interdisciplinary science, the attention of legal logic scholars has not yet focused on this issue. However, in recent years, some scholars have drawn lessons from the research on legal logic in foreign countries (such as Britain, the United States, Germany, the former Soviet Union, and Eastern Europe), and realized the importance of studying legal reasoning. They argue that the core issue of legal logic should be Legal reasoning. However, understanding and research are not the same thing. Scholars’ research on legal reasoning is still rare, which is obviously not commensurate with the status of legal reasoning. The author of this article tries to make some exploration in this aspect in order to arouse the interest of everyone.