Logic of trial

Abstract

This article is devoted to the application of logical techniques and methods in trial proceedings. The author proceeds from the fact that the logic of proving, in other words the use of arguments, cannot be excluded from the subject of civil procedure doctrine. Logic as a general scientific instrument of knowledge acquires a significant specificity in the civil procedure. The author starts with consideration of general mathematical and philosophical concepts of logic, subsequently shifting them to procedural matter and thereby showing the unity of methodology and the conceptual apparatus of logic. Thus, there is an attempt to overcome the gap that exists between the two fundamental sciences — formal logic and civil procedure. The author emphasizes that the correct application of logical laws and rules in proving provides the possibility for the courts to make a legitimate and grounded decision. A critical assessment is made of the inattentive attitude to the practical problems of the logic of proving that exists in the Russian, and even in the Soviet literature on the civil procedure. The domestic doctrine is practically not engaged in the development and theoretical conceptualization of the basic methods of argumentation and proving, although it recognizes their importance. The article pays great attention to the study of the experience of the common law countries (England and the USA), where the theory and practice of proving has a much deeper history — in these countries the logic of proving is the subject of various independent legal studies. The final part of the article is devoted to an attempt to identify and explain the reasons for this imbalance, when the theory of the civil procedure largely ignores the existing problems of proving in practice. The author sees the roots of the problem in the existing practice in the Russian system of higher legal education to focus only on the main provisions of classical formal logic, not applying them to the specific features of the legal profession in general and the process of proving in particular.

Keywords:

proving, methods of proving, argumentation, legitimacy and validity of the judicial decisions, formal logic