PHILOSOPHY AND LAW : One Aspect Of the Rehabilitation Of Practical Philosophy

The purpose of this paper is to examine how and why philosophy and jurisprudence come to grapple with the common problems in their recent developments of the study in practical (legal) argumentation and the normative discussions on justice. The paper consists of three parts. After reviewing briefly how philosophy and jurisprudence come to re-evaluate the notion of practical reason (phronesis, prudentia) in part I, the author attempts to elucidate how the criteria of dialogical rationality are institutionslizd in the legal system and judicial procedure and to inquire into the internal relations between dialogical rationality and procedural justice in parts II and III. Contents of parts II and III are as follows. II : The dialogical rationailty and the legal argumentation 1) The legal system is not the system of orders backed by coercive power, but the system of the good reasons and fair procedure for facilitating human interactions. 2) The core criterion of dialogical rationality is the reasonable consensus formed through interactional argumentations under the fair procedure. 3) The legal argumentation is a special case of practical argumentation and is expected to cope with its indeterminacy. 4) The characteristic framework of judicial procedure should be understood as the legal institutionalization of criteria of dialogical rationality. III : Procedural Justice, Human Rights and Judicial Procedure 1) According to the dialogical rationality, the fulfilment of its procedural conditions does not always guarantee the rightness of the result, their primary role is to activate interactional argumentation in the ideal situation. 2) Procedural justice contains both result-oriented and process-ori-ented values, and its function in judicial procedure exemplifies the idea of psuedo-pure procedural justice (John Rawls). 3) The postulates of procedural justice consist of three aspects --i) procedural rationality, ii) procedural fairness, and iii) neutrality and impartiality of third party. Among these, procedural fairness corresponds to human rights which postulate to treat parties as autonomous persons. 4) In the triad relations of judicial procedure, the horizontal relation between parties has the priority over the vertical relation between judge and parties. 5) The authority of judge is indispensable to judicial procedure, but it should be based upon practical reason and controlled by postulates of procedural justice