论法律裁决的不谬性
发布时间：2018-08-27 10:29
【摘要】：一般而论法律裁决被认为是负载正义的，是经过公正的程序和合理的裁断而得出的象征正义天平的度量结果，是固定在法律文本中的正义转化为实际的可以感官体验的社会生活正义的媒介。法律裁决是正义实现神圣而关键的一步，法律裁决因此被遮上神秘而莫测的面纱。对法律裁决众说纷纭的理论中，什么才是法律裁决所坚守的要义，正确的法律裁决又是什么呢，看似崇高的理想实际是对法律裁决的底线守护。 人们越是生活在复杂多变的社会中，渴望确定和正确的欲望就会越强烈。因为现代纷繁复杂的社会是一个充满未知风险的社会。人们长久以来形成的思维定式，使得人们越来越不适应于社会的流变，人们开始变得焦躁和疑虑，从而放大了社会的不确定性或是盲目的去寻找社会变化中的“不变者”以达到极度的确定性。盲目的乐观和消沉的绝望都无助于人们融入这样的社会生活；社会本身的改变将是困难的，唯一可行的方法就是改变人们的思维方式。就如同“一个人在房间里想要出去又不知道怎么办。他试着从窗子出去，但是窗子太高。他试着从烟囱出去，但是烟囱太窄。然而只要他转过身来，他就会发现房门一直是开着的。”1正如房间里面的人一样，正确的融入社会的方式一直摆在那里，只是我们一直是背对着它的，盲目乐观的确定性“窗户太高”，消沉绝望的不确定性“烟囱又太窄”，这些就是我们长久形成的思维定式；相对确定的“门一直敞开着”。社会生活中充斥着这样的思维定式，在作为社会生活一部分的并且是重要部分的法律裁决中也时常存在。对法律规则体系完美信念支撑下的“唯一正解”裁决的追求和对法官能动性的无限放大的化的“随意解”裁决的无奈，特别是在疑难案件的处理上；学者们对“唯一正解”观念的诟病颇多，对“随意解”也是多持批判态度。本文的主旨是在探讨疑难案件裁决结果的不谬性证成。在本中是对上述两种极端思维定式的批判分析，尤其是要推翻“随意解”的法律观，来达到法律裁决的一个可以宽容接受的结果，一个相对正确的答案。文章主要分为这几个部分：第一部分，简略介绍一下德沃金的所谓“唯一正解”观点，并且与哈特法律观的比较后引出本文主题。第二部分，主要是从裁量权的角度来分析，分别批判两种截然相反的法律裁决形式，从中找出一条中间路线，一个求得相对正确的答案即不谬裁决的途径。第三部分，由于对维特根斯坦后期哲学理解的各家之言不尽相同，在文中对维特根斯坦后期哲学有一个简要的介绍作为本文文中的一些观点的支撑。主要是借用维特根斯坦的后期哲学理论来看待法律规则，法律概念的产生和使用，将其放置于语境中（即生活形式）探讨从而看清生活形式的相对确定性对法律的影响，表明不确定的基础正是在于法律的根本基础——社会生活。第四部分，是从多元的风险社会说起，谈到宽容的美德和社会共识性的问题，说明社会对相对确定性的接受和宽容。虽然第三部分和第四部分探讨的话题具有一定的相似性，但是一个从语言哲学的角度来看，一个是从历史和社会的角度来看，这个问题是两个部分逻辑结构所必需的内容。最后，，结论部分就是总结从具体裁决到法律规则的产生再到社会形态，在各个点上都是对一个宽容问题，一个相对化的问题，一个我所谓的不谬性法律裁决结论的呈现。
[Abstract]:Generally speaking, legal adjudication is regarded as a load of justice, a measure of the symbolic balance of justice obtained through fair procedures and reasonable adjudication, and a medium through which justice fixed in legal texts can be transformed into practical sensible social life justice. Legal decisions are thus veiled with mystery and uncertainty. What is the essence of legal decisions and what is the correct legal decisions in the theory of legal decisions? The seemingly lofty ideal is actually the protection of the bottom line of legal decisions.
The more people live in complex and changeable societies, the more intense their desire for certainty and correctness becomes. Because the modern complex society is a society full of unknown risks, the long-standing thinking patterns that people have formed make people more and more unsuitable for the social changes, people begin to become anxious and doubtful, thus amplifying. Blind optimism and depressed despair do not help people integrate into such social life; social change itself will be difficult, and the only viable way is to change people's way of thinking. He tried to get out of the chimney, but the chimney was too narrow. But as soon as he turned around, he would find that the door was always open. "1 Like the people in the room, the right way to integrate into society was always there, but only We've been facing it with our backs, blindly optimistic certainty that the "windows are too high" and desperate uncertainty that the "chimneys are too narrow" are our long-established mindsets; relatively definite "doors are always open." Social life is filled with such mindsets, which are part of and are part of social life. The pursuit of the "only positive solution" ruling supported by the belief in the perfect legal system and the helplessness of the "arbitrary solution" ruling with unlimited enlargement of the judge's initiative, especially in dealing with difficult cases, have been criticized by scholars for the concept of "only positive solution" and for "only positive solution". The main purpose of this paper is to explore the proof of the irrefutability of the verdict results in difficult cases. In this paper, we make a critical analysis of the above two extreme thinking patterns, especially to overthrow the legal concept of "arbitrary solution" in order to achieve a tolerable and acceptable result and a relatively correct answer to legal decisions. The article mainly divides into these parts: The first part briefly introduces Dworkin's so-called "only positive solution" viewpoint, and leads to the theme of this article after comparing with Hart's legal view. The second part, mainly from the perspective of discretion, criticizes two opposite forms of legal adjudication, and finds a middle way out. In the third part, due to the different opinions on Wittgenstein's later philosophy, there is a brief introduction to Wittgenstein's later philosophy as the support of some viewpoints in this paper. It mainly borrows Wittgenstein's later philosophy. In view of the legal rules, the emergence and use of legal concepts, put them in context (i.e. forms of life) to explore the impact of the relative certainty of life forms on the law, indicating that the basis of uncertainty lies in the fundamental foundation of law - social life. Part IV, from a pluralistic risk society, talks about tolerance. The question of virtue and social consensus illustrates the social acceptance and tolerance of relative certainty. Although the topics discussed in the third and fourth parts have some similarities, one is from the perspective of linguistic philosophy, the other is from the perspective of history and society, which is an essential part of the logical structure of the two parts. Finally, the conclusion part is to summarize from the specific verdict to the emergence of legal rules and then to the social form, at all points are a question of tolerance, a question of relativity, a so-called non-fallacious conclusion of legal adjudication.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90
本文编号：2207004
[Abstract]:Generally speaking, legal adjudication is regarded as a load of justice, a measure of the symbolic balance of justice obtained through fair procedures and reasonable adjudication, and a medium through which justice fixed in legal texts can be transformed into practical sensible social life justice. Legal decisions are thus veiled with mystery and uncertainty. What is the essence of legal decisions and what is the correct legal decisions in the theory of legal decisions? The seemingly lofty ideal is actually the protection of the bottom line of legal decisions.
The more people live in complex and changeable societies, the more intense their desire for certainty and correctness becomes. Because the modern complex society is a society full of unknown risks, the long-standing thinking patterns that people have formed make people more and more unsuitable for the social changes, people begin to become anxious and doubtful, thus amplifying. Blind optimism and depressed despair do not help people integrate into such social life; social change itself will be difficult, and the only viable way is to change people's way of thinking. He tried to get out of the chimney, but the chimney was too narrow. But as soon as he turned around, he would find that the door was always open. "1 Like the people in the room, the right way to integrate into society was always there, but only We've been facing it with our backs, blindly optimistic certainty that the "windows are too high" and desperate uncertainty that the "chimneys are too narrow" are our long-established mindsets; relatively definite "doors are always open." Social life is filled with such mindsets, which are part of and are part of social life. The pursuit of the "only positive solution" ruling supported by the belief in the perfect legal system and the helplessness of the "arbitrary solution" ruling with unlimited enlargement of the judge's initiative, especially in dealing with difficult cases, have been criticized by scholars for the concept of "only positive solution" and for "only positive solution". The main purpose of this paper is to explore the proof of the irrefutability of the verdict results in difficult cases. In this paper, we make a critical analysis of the above two extreme thinking patterns, especially to overthrow the legal concept of "arbitrary solution" in order to achieve a tolerable and acceptable result and a relatively correct answer to legal decisions. The article mainly divides into these parts: The first part briefly introduces Dworkin's so-called "only positive solution" viewpoint, and leads to the theme of this article after comparing with Hart's legal view. The second part, mainly from the perspective of discretion, criticizes two opposite forms of legal adjudication, and finds a middle way out. In the third part, due to the different opinions on Wittgenstein's later philosophy, there is a brief introduction to Wittgenstein's later philosophy as the support of some viewpoints in this paper. It mainly borrows Wittgenstein's later philosophy. In view of the legal rules, the emergence and use of legal concepts, put them in context (i.e. forms of life) to explore the impact of the relative certainty of life forms on the law, indicating that the basis of uncertainty lies in the fundamental foundation of law - social life. Part IV, from a pluralistic risk society, talks about tolerance. The question of virtue and social consensus illustrates the social acceptance and tolerance of relative certainty. Although the topics discussed in the third and fourth parts have some similarities, one is from the perspective of linguistic philosophy, the other is from the perspective of history and society, which is an essential part of the logical structure of the two parts. Finally, the conclusion part is to summarize from the specific verdict to the emergence of legal rules and then to the social form, at all points are a question of tolerance, a question of relativity, a so-called non-fallacious conclusion of legal adjudication.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D90
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1 何永祥;论法律裁决的不谬性[D];西南政法大学;2012年
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