چکیده:
Based on the conventional understanding of the principle of separation of powers, the judge's duty is merely to recognize the legislator's will and apply it to external cases. The motivation to achieve legal certainty and the existence of factors such as the syllogistic form of judicial reasoning and the necessity of inferring all results from the law have led to a traditional tendency among jurists to analyze judicial syllogism within the framework of a formal syllogism. In a formal syllogism or deductive reasoning subject to formal logic, the reasoning has a necessary process and there is only one correct result, and there is no room for doubt or skepticism. A careful look at the minor and major premises of judicial syllogism reveals that the desire to transform judicial syllogism into a formal and necessary syllogism is a raw and unattainable fantasy. The impossibility of clarifying legal concepts and the existence of defects, ambiguity, and conflicts in laws, on the one hand, and the impossibility of achieving certainty in the stage of establishing facts, on the other hand, do not allow for formalism and the transformation of judicial reasoning into formal and necessary reasoning. Due to the non-necessary nature of judicial arguments, these arguments, unlike arguments subject to formal logic, are not devoid of human intervention. The type and quality of intervention and the judge's use of this development and flexibility determine the characteristics of each legal system and the foundations accepted by the judge. Accordingly, in systems where the actual will of the legislator is not relevant, the judge can use this opportunity to steer the reasoning process towards a fair and desirable outcome.
خلاصه ماشینی:
In the legal system as well, like formal axiomatic systems, after the selection and establishment of axioms, which may have been obtained based on induction and experience or natural law rules, or even intuition or other sources, the relationship between legal reasoning and the outside world and, in general, with anything outside the data of the argument is severed (Tabit, 1384, p.
C- Intervention of the element of decision and judgment in the stage of establishing facts (verification of the minor premise) The issue of lack of necessity and intervention of the personal element in judicial syllogism is not limited to the major premise, which contains the enforceable legal rule, but also the minor premise, which relates to identifying the instance and establishing the subject matter, is not free from the personal element and the judge's evaluation.
This is because not only is there no doubt about the validity of assurance in the science of jurisprudence, but as we said, requiring the attainment of "mathematical certainty" in law, which is full of complexities and ambiguities both in factual and legal matters, is to demand the impossible, which is certainly not befitting a wise God. Distinguishing Legal Proof from Experimental Proof in Terms of the Involvement of Principles and Presumptions One of the important points that makes establishing the subject matter in the minor premise incomparable with a cognitive process similar to what takes place in experimental sciences is the issue of negative judgments in the position of judgment.
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