The Powers of Application

This paper studies the formality of law and legal reasoning. It argues that, though the law (and its application) is indeed formal in that it does not take into account a significant number of considerations that should in principle be relevant for an all–things–considered decision, this is not to be explained on the basis of some ontology of rules (i.e., rules as exclusionary reasons), but upon the nature of legal discourse when viewed as a social practice. How the law is applied to particular cases, when substantive considerations not referred to by the rules are important enough to defeat their application to the case and questions of this kind are not answered by the legal material (which includes or might include rules, principles etc.), but by beliefs that underlie legal practice, beliefs about the world and its relation to human beings and society. Insofar as these beliefs have impact upon practices we recognise as legal they are termed "images of law." Legal reasoning cannot be understood without paying due attention to the nature and evolution of images of law.     

Principle of Proportionality as Principle of Economic Efficiency

The principle of proportionality is at the cornerstone of EU law, and precisely of the case‐law of the European Court of Justice (ECJ). In the law and economics literature, the general principles of law are commonly opposed to legal rules in terms of efficiency. On the one hand, the legal formalistic approach consists of apprehending the law as principled, whereby principles of law do not and should not encompass an efficiency rationale and should be self‐sufficient. On the other hand, the legal nihilism denying the existence or relevance of the general principles of law favours legal rules that are said to incorporate an efficiency rationale. I intend to analyse the efficiency rationale of probably the most important general principles of EU law—the proportionality principle. In this paper, I shall assert that not only does the EU proportionality principle encapsulate an efficiency rationale, but most importantly, it has been interpreted by the ECJ as such—hence, I propose the representation of the principle of proportionality as a principle of economic efficiency. After having introduced the principle of proportionality (1), I shall decipher the proportionality principle both from a law and economics perspective, and from a comparative perspective (2). Then, I shall delve into the jurisprudence of the ECJ so that the judicial reasoning of the Court as this reasoning proves the relevance of the proposed representation (3). Finally, I conclude in light of the findings of this paper (4).     

Dyzenhaus on Positivism and Judicial Obligation

Abstract
The author criticizes the argument in Dyzenhaus (1991) that a study of South African judicial decisions establishes the superiority of Dworkinian anti-positivism over legal positivism. Among the claims criticized are: (1) Positivism and anti-positivism each imply a specific theory of judicial duty, and the decisions of South African judges are explained by their adherence to one or the other of these theories; (2) resistance to South African government policy was morally required of judges; (3) the only theory which supports this resistance (anti-positivism) is therefore the correct one; (4) the cases establish that judges do not have discretion in hard cases; (5) Dworkin's theory does not imply that South African judges are required to apply the wicked principles embedded in their legal system; (6) positivism involves a pragmatic contradiction.     

法律方法论体系的“逻辑”问题

法律方法论体系属于实用法学中的基础理论问题。对其进行研究是建构法律方法论学科的逻辑基础。从司法的视角看，法律发现、法律解释、法律论证、价值衡量、法律推理以及支持这些方法的诸多法学原理构成了法律方法论体系。这一体系与过去建构在法律原理分析基础的法律运用有很多的区别，是一种开放性的法律方法体系，更能体现法律方法的艺术性。     

Legisprudence as a New Theory of Legislation

Abstract. Legal theory has so far focused exclusively on judicial activity, not on legislation. This is due to the specific legal framework of reasoning, upon which it is essential to act upon rules, wherever they come from. This form of (strong) legalism is criticized and replaced by weak legalism. Weak legalism makes it possible to detect the principles of legislation that underly the activity of the legislator. Legisprudence is the theory of these principles.     

在亮点与盲点之间——论“不证实自己有罪”的规范对比与冲突

"不得强迫任何人证实自己有罪"是我国《刑事诉讼法》第二次修正首次引入的旨在抑制刑讯逼供、促进人权保障的法律规范,具有宣示性的正面进步意义。然而这一立法亮点降生在我国特定的司法体制体中,无论是法律语言的内涵还是法律原则与规则的创制方面,与国际法、外国法视野中的"不自证其罪"尚存在诸多差异;同时,规范所凸显的价值与国内程序法、实体法、证据法形成的紧张关系,将不断拷问未来法律实施的效能。制度中的盲点只有借助于立法完善、法律解释、法律推理等冲突解决机制的有效介入与解构,亮点才能闪烁出理性的光茫。     

The role of coherence in legal reasoning

Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to a branch of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented.     

法官视角中的能动司法

能动司法是司法创造力的体现。在美国,这种司法能动的突出表现形式是司法审查权,通过多年的案例发展,美国已经形成了较为完备的司法审查体制。在英国,至今法院尚无对立法的审查权。但在英美法系国家,由于有判例法传统,法官的司法能动性相对较大,在案件审理中,区分相似案件事实和不断发展法律规则是法官司法技术的重要组成部分。英美法系的司法能动对我国司法实践具有积极的借鉴意义。在我国,司法能动在审判领域的主要表现形式是最高法院司法解释、个案法官法律论证,其主线是政策考量与法律考量,也可称之为社会效果考量与法律效果考量。     

Judicial Practical Reason: Judges in Morally Imperfect Legal Orders

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications.     

Towards the Semantics of "Constitutive" in Judicial Reasoning

The aim of the paper is to supply a contribution to the semantics of "constitutive," as confined to the scope of judicial reasoning. More precisely, the aim of the paper is to inquire what links the use of "constitutive" in three distinct (seemingly unrelated) issues on adjudication, namely: (a) the procedural classification of different sorts of judicial decisions, (b) the epistemological debate on the very nature of judicial decisions, and (c) a logical query on the import constitutive rules might be taken to have in affecting the sort and/or the nature of judicial decisions in which they might occur as the legal premiss, grounding the solution of the case. The attempt to fix some markers towards the semantics of "constitutive" in judicial reasoning will have Alchourrón and Bulygin's analyses as a main point of reference.     

论刑法适用中道德评价因素的考量

道德评价能否在刑法适用中予以考虑,是刑事司法中的难题。一方面,道德评价在刑事司法中的体现是普遍存在的实然现象;而另一方面,法治原则一般又要求道德评价不应介入司法领域,否则,依法司法的理念将受到冲击。从理论上来看,道德评价可以在刑法适用解释中予以考虑,与其让道德评价潜在地、非理性地影响刑法的解释与适用,不如理性地承认和接受道德评价因素,并对其规范、限制和合理运用。道德评价因素在刑法解释和适用中的考量既是法理的要求,也是刑法原则所许可的,那种绝对排斥道德评价的观点,看似符合法治原则,但实际上并不能成立。从社会学的视角判断,刑法适用中考量道德评价因素是社会和谐的需求,也是社会学解释方法的题中应有之义。当然,对道德评价的考量与运用,应当在法律方法论的范围内,并在对其认真甄别、选择的基础上进行。     

Legal Reasoning and Legal Theory Revisited

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.     

基于法律原则的裁判

基于法律原则的裁判需依次解决以下三个问题:如何识别与个案相关的法律原则;如何处理原则与规则的适用关系,或者说在何种情况下,允许裁判者依据法律原则得出判决;如何解决原则之间的冲突问题,亦即能否籍由原则权衡获取法律上的“唯一正解”。现有的裁判理论对这三个问题作了不同回应,但欠缺可靠的操作程式。究其根源,是因为原则裁判的实质,是裁判者在规则穷尽之际,选择并依据法律体系内的价值判断为个案判决提供合理化论证;然而一旦涉及到价值判断,裁判就有主观、恣意和片面的可能。     

论法律推理的合法性要求

合法性是对司法审判活动的基本要求,在法律推理中同样如此。法律形式主义的合法性理论遭到了法律现实主义的否定,这两种理论都是以简化的法律推理模式为出发点的。本文指出,法律推理的合法性首先要求法律推理必须使用法律上的理由;其次还取决于当事人及其律师的合法参与以及社会对司法判决的一般性接受。     

法律原则在法律推理中的地位和作用——一个比较的研究

我国关于法律原则的讨论一般集中在立法过于笼统与立法所规定的法律基本原则这两个方面。这种意义上的法律原则与德沃金所说的法律原则存在重要区别。德沃金关于法律原则的讨论其目的是强调法律的确定性 ,而我们关于法律原则的讨论却在强化法律的模糊性。法律原则的讨论主要涉及法律推理过程中原则与规则之间的关系。基于法治的原因 ,法律推理必须坚持将法律规则作为法律推理的大前提 ;在法律规则含义不明确、模糊或者相互矛盾时 ,可以使用法律原则 ,但是 ,必须经过一定的法律原则的认定程序。     

Litigation,Judicial Path-Dependence,and Legal Change

In this paper we consider the role that litigation and case selection play in the process of legal change. After identifying two necessary conditions for litigation, we examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation with different win–loss ratios. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the win–loss ratios, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.JEL K0, K40, K13, K41     

司法裁判引证法律学说的功能研究——基于生效裁判文书的实证分析

法律学说是连接立法与实践的知识储备和理论桥梁,也是推动司法与社会互动的知识引擎和理论动力。学者的学术观点是法律学说的直接体现。在我国,存在司法判决引证法学学者观点的现象。实证研究表明,268份样本裁判文书中,有60位法学学者的观点被引证307次。法律学说在裁判文书中发挥着解释法律、论证说理及补充法律漏洞等作用,从而增强法官对法律事实性质或裁判结果判断的合理性和合法性,提升裁判结果的可接受性。从应然层面来看,法律学说要为司法裁判提供可能的参考答案,为司法裁判提供有效的法律方法以及通过司法裁判总结科学的司法规律。实证研究与理论分析表明,虽然司法判决可以成为法律学说的“试验田”,但是从主题任务和实践立场两分的角度看,法学与司法的适当分离是法治持续进步的阶梯。     

Information, Litigation, and Common Law Evolution

It is common in the legal academy to describe judicial decisiontrends leading to new common law rules as resulting from consciousjudicial effort. Evolutionary models of litigation, in contrast,treat common law as resulting from pressure applied by litigants.One apparent difficulty in the theory of litigation is explaininghow trends in judicial decisions favoring one litigant, andbiasing the legal standard, could occur. This article presentsa model in which an apparent bias in the legal standard canoccur in the absence of any effort toward this end on the partof judges. Trends can develop favoring the better-informed litigantwhose case is also meritorious. Although the model does notsuggest an unambiguous trend toward efficient legal rules, itdoes show how private information from litigants becomes embodiedin common law, an important part of the theory of efficientlegal rules.     

Changes in the Sources of Law in Information Society

The purpose of the paper is to indicate in which way modern digital information systems influence the range of legal sources and to assess whether such changes improve the quality of judgements and other legal decisions. The paper uses examples from Danish law but does not in any detail describe specific information systems. It takes a more general approach. At the beginning the concept of a legal source is briefly discussed and it is considered why these sources are used. Preconditions for their usage are mainly availability and comprehensibility. With this background changes with respect to general legal rules, judicial and administrative decisions in national law are discussed with emphasis on the general considerations that are made in connection with developing information systems. Next developments in connection with EU law, international law and foreign law are considered and the importance of the Internet is emphasized. At the end it is briefly considered whether the different changes will lead to an improved legal system, to better decisions. This is a possibility but only if the potential of the information society is utilized.     

英国诱惑侦查制度的评析与借鉴

20世纪80年代以后,英国法上发展出了在某些圈套案件中排除证据或终止诉讼的救济措施。在判断诱惑侦查合法性方面,形成了一种兼顾多种相关因素、重点关注警察行为、注重利益权衡、诉诸自由裁量的判断模式。但司法上对待诱惑侦查仍然持相当宽容的态度,表现出法律言说与司法实践的某种背离。对我国具有如下启示:在法律规制方面,应当力求明确清晰;在判断方法上坚持综合审查,以“因果关系”为最终标准;应建立非法诱惑侦查的程序性制裁机制,加强对被告人权利的保护。