論法律裁決的不謬性
發(fā)布時(shí)間：2018-08-27 10:29
【摘要】：一般而論法律裁決被認(rèn)為是負(fù)載正義的，是經(jīng)過公正的程序和合理的裁斷而得出的象征正義天平的度量結(jié)果，是固定在法律文本中的正義轉(zhuǎn)化為實(shí)際的可以感官體驗(yàn)的社會生活正義的媒介。法律裁決是正義實(shí)現(xiàn)神圣而關(guān)鍵的一步，法律裁決因此被遮上神秘而莫測的面紗。對法律裁決眾說紛紜的理論中，什么才是法律裁決所堅(jiān)守的要義，正確的法律裁決又是什么呢，看似崇高的理想實(shí)際是對法律裁決的底線守護(hù)。 人們越是生活在復(fù)雜多變的社會中，渴望確定和正確的欲望就會越強(qiáng)烈。因?yàn)楝F(xiàn)代紛繁復(fù)雜的社會是一個(gè)充滿未知風(fēng)險(xiǎn)的社會。人們長久以來形成的思維定式，使得人們越來越不適應(yīng)于社會的流變，人們開始變得焦躁和疑慮，從而放大了社會的不確定性或是盲目的去尋找社會變化中的“不變者”以達(dá)到極度的確定性。盲目的樂觀和消沉的絕望都無助于人們?nèi)谌脒@樣的社會生活；社會本身的改變將是困難的，唯一可行的方法就是改變?nèi)藗兊乃季S方式。就如同“一個(gè)人在房間里想要出去又不知道怎么辦。他試著從窗子出去，但是窗子太高。他試著從煙囪出去，但是煙囪太窄。然而只要他轉(zhuǎn)過身來，他就會發(fā)現(xiàn)房門一直是開著的�！�1正如房間里面的人一樣，正確的融入社會的方式一直擺在那里，只是我們一直是背對著它的，盲目樂觀的確定性“窗戶太高”，消沉絕望的不確定性“煙囪又太窄”，這些就是我們長久形成的思維定式；相對確定的“門一直敞開著”。社會生活中充斥著這樣的思維定式，在作為社會生活一部分的并且是重要部分的法律裁決中也時(shí)常存在。對法律規(guī)則體系完美信念支撐下的“唯一正解”裁決的追求和對法官能動性的無限放大的化的“隨意解”裁決的無奈，特別是在疑難案件的處理上；學(xué)者們對“唯一正解”觀念的詬病頗多，對“隨意解”也是多持批判態(tài)度。本文的主旨是在探討疑難案件裁決結(jié)果的不謬性證成。在本中是對上述兩種極端思維定式的批判分析，尤其是要推翻“隨意解”的法律觀，來達(dá)到法律裁決的一個(gè)可以寬容接受的結(jié)果，一個(gè)相對正確的答案。文章主要分為這幾個(gè)部分：第一部分，簡略介紹一下德沃金的所謂“唯一正解”觀點(diǎn)，并且與哈特法律觀的比較后引出本文主題。第二部分，主要是從裁量權(quán)的角度來分析，分別批判兩種截然相反的法律裁決形式，從中找出一條中間路線，一個(gè)求得相對正確的答案即不謬裁決的途徑。第三部分，由于對維特根斯坦后期哲學(xué)理解的各家之言不盡相同，在文中對維特根斯坦后期哲學(xué)有一個(gè)簡要的介紹作為本文文中的一些觀點(diǎn)的支撐。主要是借用維特根斯坦的后期哲學(xué)理論來看待法律規(guī)則，法律概念的產(chǎn)生和使用，將其放置于語境中（即生活形式）探討從而看清生活形式的相對確定性對法律的影響，表明不確定的基礎(chǔ)正是在于法律的根本基礎(chǔ)——社會生活。第四部分，是從多元的風(fēng)險(xiǎn)社會說起，談到寬容的美德和社會共識性的問題，說明社會對相對確定性的接受和寬容。雖然第三部分和第四部分探討的話題具有一定的相似性，但是一個(gè)從語言哲學(xué)的角度來看，一個(gè)是從歷史和社會的角度來看，這個(gè)問題是兩個(gè)部分邏輯結(jié)構(gòu)所必需的內(nèi)容。最后，，結(jié)論部分就是總結(jié)從具體裁決到法律規(guī)則的產(chǎn)生再到社會形態(tài)，在各個(gè)點(diǎn)上都是對一個(gè)寬容問題，一個(gè)相對化的問題，一個(gè)我所謂的不謬性法律裁決結(jié)論的呈現(xiàn)。
[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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D90
本文編號：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.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D90
【相似文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 何永祥;論法律裁決的不謬性[D];西南政法大學(xué);2012年
本文編號：2207004
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