جستجوی مقالات مرتبط با کلیدواژه "قیاس صوری" در نشریات گروه "فقه و حقوق"

The last stage of the judicial process is the formation of an argument of the syllogism of formal logic consisting of premise and conclusion. In this process, syllogism from the point of view of logic is a statement composed of propositions, which, if assumed to be definite and certain, inherently another theorem emerges from it. The use of syllogism of formal logic as the main method of reasoning in judicial ruling process has always been followed by many criticisms, the most important of which is the refusal to fulfill the description of the certainty of the premises and, consequently, the failure to issue inviolable conclusions because of the interference of human factors with emotions and emotions, and also, the impossibility of discovering the certain facts of the case, which are in conflict with the known features of this type of argument. But these objections in general must be answered as follows: First, what is to be expected from the certain preconditions for the formation of a reasoning argument in jurisprudence is the acquired knowledge which is considered acceptable and sufficient in convincing the judge; Not logical or philosophical certainty. Secondly, deduction in its fourteen sources can be divided into two practical applications of argument and controversy. In argument, the substance of "Conjectures" comes from certainty and will be used in the minor premise as the source of the judge's legal syllogism. And in the controversy (debate), he introduces the material of "Famous subjects and Certainties" with special and significant conditions, as the basis of the judge's knowledge, which provides the means to eliminate the said objections in appropriate ways.

To determining the relationship between logic and contract interpretation it could be paid attention to logic from two views: particular and general. The relationship between interpretation and logic science in a particular meaning could be briefly studied in three realms: argumentations causing interpretation, logical survey of literature and argumentations encompassing the logical interpretation on contract. In the stage of argumentations causing interpretation a particular attention should be paid to the role of both parties’ will of a contract in drawing the valid inference from premises that it will appear in the form of necessity of achieving one of the provisions for following conclusion of syllogism i.e. the repetition of middle term in both premises. The second stage in the developmental process of the relationship between logic and interpretation should be dedicated to the logical reviewing of the text of the agreement that it will be shaped with using the tools of the utterance discussions of the logic science and also reasoning principles governing in the logical epistemology. The last stage of this interpretative process relates to the argumentations surrounding the logical interpretation of the contract or arguments resulting “final decision” or “final judgment”. It has specific concern with the issues of the argument (hujjat) in the logic science i.e. analogical arguments. Also in common and conventional aspect of the logical interpretation, social norms and legal ideals such as ethics, justice and fairness as factors which determine the amount of nearness of the two logic and interpretation concepts of the logic and interpretation have been noted.

In accordance with classical understanding of the principle of separation of powers, the task of a judge is merely to discover the intention of legislator and to apply it to the facts of cases. The motives behind the achieving judicial security and the existence of factors such as syllogistical form of judicial reasoning and the necessity of deduction of all the results from law has led to the traditional tendency among jurists to present judicial syllogism within the context of formal syllogism. formal syllogism or deductive reasoning based on formal logic, reasoning possesses a necessary process and there would be no true outcom but one, and there would remain no room for doubt. A precise look at the minor and major judicial syllogism demonstrates that the notion of chang of judicial syllogism to that of formal, definitive, and objective is nothing but a naive fiction far from achievement. The impossibility of making the legal concept clear and the existence of defects in and of law, as well as conflict of laws, on the one hand, and impossibility of reaching definitiveness and certainty at verification of factual stage of a case, on the other hand, do not allow formalism and change of judicial reasoning into formal and necessary reasoning. Due to the fact that judicial reasoning are unnecessary, these reasonings, unlike reasonings that are subject to formal logic are not free from the intervention of human factors. The type and quality of that intervention and the usage of this flexibility and broadness by a judge, are determined by the characteristic features of each legal system and the foundations concerned.