Post-Print筆數 : 27 |
Items with full text/Total items : 92416/122720 (75%)
Visitors : 26258538
Online Users : 115
Please use this identifier to cite or link to this item:
|Other Titles: ||Introspection on the Syllogism of Legal Science—Syllogism as the Foundation for Rationality of the Science of Law?|
|Issue Date: ||2016-05-16 17:13:17 (UTC+8)|
Since the claimed inherently existing rationality and law have been challenged by the Positivists with its scientific empirical approach, Legal Positivism abstained from establishing a foundation for the science of law on any essential aspects; instead they established it based on “formal rationality”, which is Logic. Legal Positivists framed the science of law through Logic on the one hand, and on the other they claimed that Logic is endowed with rationality that is beyond reproach and conforms to factuality; hence they established the objective rational and universal foundation of the Legal Positivist’s science of law. From observing the current legal educational system, we can easily acknowledge the influence from Legal Positivism and the current legal educational system is embued with its position; therefore law is always treated under the rubric of rationality and its applied outcome. As Legal Positivists and most jurists are addicted to this claimed rational world, people seldom think in terms of Einstein’s Relativity theory, which is just like a raging fire that has the potential to set the prairie ablaze. His theory has been extended from the field of the pure sciences to the human and social sciences. A revolution that convulses the foundation of the rationality of past knowledge has already come upon us, and it is also reflected in the trends of Western Postmodernism and the Neo-Enlightenment movement. Legal Positivists claim that the syllogism of Logic is the basis of legal science and that it is also confined within rationality. The syllogism of Logic can be traced back to Aristotle’s Syllogism and it is still framed on the ground of Western Ontological thought that has its origins in the Ancient Greek era. In relying exclusively on the Ontological perspective, even though Legal Philosophy (the Philosophy of Law) is subject to Legal Positivism’s critique, proponents can also claim that Legal Positivism still retains the characteristics of the thought of Legal Philosophy. Legal Positivism not only is based on the Ontological perspective, but it caused the Typology to dominate the field of the science of law, as well as the disciplines within the human and social sciences for quite a long time. However, all of this will eventually come to grips with the unavoidable destiny in the form of Einstein’s Relativity theory. This article is based on a relativitivistic view which is employed to discuss several issues of Syllogism. Throughout the scientific introspections and critiques herein presented, this article attempts to reveal the insufficiency of the rational basis of Syllogism in order to shatter the rational foundation of Legal Positivism and also explain the reason why Legal Positivism has already been handed down its “death sentence”.
|Relation: ||法學評論, 95, 1-54|
|Data Type: ||article|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
Files in This Item:
All items in 政大典藏 are protected by copyright, with all rights reserved.