法律原则适用与程序制度保障——以民事法为中心的分析

法律原则因为没有明确、具体的事实构成要件和法律效果而无法像法律规则那样为当事人提供行为准则,为法官提供裁判根据。适用法律原则处理个案纠纷就是法官以自己所“造”之法进行司法裁判,其适用困境的实质在于,以立法机关制定的(成文)法律规则为中心运行的司法制度(尤其是司法程序)难以为法官行使自由裁量权提供有效的正当性论证。在实体法、法律适用技术的范围内,以构建适用条件、适用规则,完善适用方法等方式来破解此困境,作用极为有限。重构司法程序制度,使当事人、社会能够以恰当的方式参与到具体的裁判过程以制约法官的裁量权,或许是解决此难题的可能途径。     

Judging the Best Interests of the Child: Judges' Accounts of the Tender Years Doctrine

With dramatic changes in family life over the last several decades, child custody law has shifted from a maternal preference to a more egalitarian standard, the best interests of the child. Despite this change in the law, scholars have debated whether gender continues to play a role in the resolution of custody disputes. Drawing on feminist legal scholarship and sociolegal research on judges, I assess the current debates over gender and custody by examining the accounts of judges who frequently adjudicate custody cases. I conduct in-depth, face-to-face interviews with twenty-five trial court judges in Indiana and investigate judges' accounts about whether they continue to use the tender years doctrine in custody disputes, even though the custody statute is explicitly gender-neutral. Then, I assess several competing explanations of the variation across judges' accounts, including the judges' gender role attitudes, gender, age, and political party affiliation. In exploratory analyses, I also examine the contested custody rulings of a subset of nine judges to assess whether judges' accounts are congruent with their actual custody decisions. I discuss the implications of these findings in light of feminist legal scholarship as well as empirical research on child custody adjudication.     

司法过程中的法律发现及其方法论析

司法过程中的法律发现有二层含义:其一指法官从现行法体系中找出那些能够适用于当下案件的法规范或解释性命题的活动;其二是指在没有明确法规范或解释性命题可以适用的情况下进行漏洞填补或自由造法的一系列活动。法律发现方法主要有法律识别、法律解释和漏洞填补几种。在适用法律中,法官关于法律的认识、法渊理论、诉讼参与人等因素都会影响法官的法律发现。     

权利冲突的司法化解

法定权利之间的冲突并非一个伪命题,其在司法实践中颇为常见。受到立法者的有限理性、社会的变动性以及法律语言的模糊性等多重因素的影响,某些情形下权利的边界未被立法者清晰界定,并由此引发法定权利之间的冲突。权利冲突的实质是利益冲突和价值冲突。权利冲突的存在导致了法律适用的难题,法官需要借助个案中的法益衡量来确定权利边界并进而化解权利冲突。法官在进行法益衡量时,可以参考权利位阶来作出判断,然而权利位阶秩序缺乏整体确定性,仅有有限的参考价值,因此法益衡量还需诉诸比例原则。比例原则包括适当性原则、必要性原则和狭义的比例原则三项子原则。比例原则能够指引法官对权利作客观和理性的衡量,最大限度地缩小法官的裁量余地。鉴于个案中的法益衡量具有决策性质,法官必须在司法能动主义与司法克制主义之间维持恰当的平衡,在解决权利冲突时不能逾越司法的限度。     

司法能动性何以实现?——以最高人民法院司法解释为分析基础

司法过程中法官在法律适用中的自由裁量权体现了司法能动性.我国主要是由最高人民法院发布大量抽象性司法解释的方式来指引法官在个案审理中的法律适用,这种司法能动性的行使方式在理论界和实务界引发了一定的争议.我们应当客观地看待我国最高法院的司法解释权,而在未来的发展中,我国应当在纯化现有司法解释体制和审级制度改革的基础上,辅以判例,并逐步扩大法官在个案审理中的法律解释权.     

Do a Law’s Policy Implications Affect Beliefs About Its Constitutionality? An Experimental Test

Although a substantial empirical literature has found associations between judges' political orientation and their judicial decisions, the nature of the relationship between policy preferences and constitutional reasoning remains unclear. In this experimental study, law students were asked to determine the constitutionality of a hypothetical law, where the policy implications of the law were manipulated while holding all legal evidence constant. The data indicate that, even with an incentive to select the ruling best supported by the legal evidence, liberal participants were more likely to overturn laws that decreased taxes than laws that increased taxes. The opposite pattern held for conservatives. The experimental manipulation significantly affected even those participants who believed their policy preferences had no influence on their constitutional decisions.     

环境民事公益诉讼法律适用困境及其破解

环境民事公益诉讼在司法实践中已得到大量运用,但其存在以下法律适用上的问题:第一,在对具体个案是环境民事公益诉讼还是其他私益诉讼的性质判断上,现有裁判存在显著差异。第二,在环境民事公益诉讼与类似案件的审理中,不同案件裁判者在程序选择与裁判结果上也呈现各异的走向。原因在于该诉的法律适用中存在"公共利益"等现有民事法律体系难以评价的规范性构成要件。究其根源,是该诉的独立请求权基础尚未得到明确。因此裁判者在审案时通过"借用"环境侵权之诉等类似诉讼请求权基础进行涵摄时,其法律适用过程就容易产生混同。明确环境民事公益诉讼请求权并精细该诉的法律规则,有助于环境民事公益诉讼程序的公正运行与裁判结果的日趋统一。     

判例:一种法律解释的方法--兼论我国国际私法判例制度的构建

判例法和成文法分别是普通法系和大陆法系的主要法律渊源.然而,作为一种创制法律、解释法律的技术方法而言,判例法与成文法并不是相互排斥、相互对立的.来自法官个案司法经验总结的判例法,由于其独特的直观性、灵活性,可以弥补大陆法系成文法适用与解释之不足.成文法亦是我国的传统,借鉴和移植判例制度,有助于克服我国司法解释中存在的种种缺陷,增强法律适用的确定性、灵活性和公正性.尤其在国际私法领域,立法的严重滞后,使得判例制度的引进和重构成为完善我国国际私法的一个重要路径.     

Dialogue with Dictators: Judicial Resistance in Argentina and Brazil

Throughout the world, judges are often asked to implement the repressive measures of authoritarian rulers. Which conception of legal interpretation and judicial role, if any, make judges more likely to resist such pressures? That question, central to Anglo-American jurisprudence since the Hart-Fuller debate, is addressed by examining recent military rule in Argentina and Brazil. In Argentina, judges were sympathetic to military rule and so criticized its “excesses” in the jurisprudential terms favored by the juntas: positivism and legal realism. Brazilian judges, by contrast, were largely unsympathetic to military rule, and so couched their criticism in terms of natural law, in order to raise larger questions and reach a broader public. Empirical study of the cases and conceptual analysis of existing theories both reveal that no view of legal interpretation inherently disposes its adherents to either accept or repudiate repressive law. Contingent political circtrmstances—the rulers’favored form of legal rhetoric, and the degree to which judges accept the need for a period of extra-constitutional rule—determine which legal theory fosters most resistance. But since most authoritarian rulers nominally affirm their constitutional predecessors’positive law and are often unwilling to codify publicly their most repressive policies, strict literalism usually offers the most congenial idiom for judicial resistance to such regimes.     

Law-making functions of the Chinese courts: Judicial activism in a country of rapid social changes

The judicial production of law and the legislative production of law make a striking distinction between the two legal traditions. Despite of these differences, judges in both legal traditions in adjudicating cases have a common task, which is the application of legal rules to the facts of cases pending for judgments. The tension between the certainty and the “discretion” is universal for any legal system and, to a certain extent, it poses a hard dilemma for the rhetoric of rule of law. In the transitional countries such as China where rapid social changes and transformations take place, the judiciary and judges can not escape from taking more active roles in interpreting or even law making process. It arouses much controversy, particularly in continental legal traditions, for the judiciary is deemed to perform a mechanical role in adjudicating cases. This article intends to analyze the needs for judicial law-making function in China and its reasons. It reveals that judicial interpretation constitutes an important source of law despite its ambiguous legislative position. The article argues that judicial activism is inevitable against the transitional nature of current Chinese society.     

司法经验中的生活体验——从典型女性法官形象切入

从典型女性法官的司法经验来看,她们之所以在日常的司法工作中有着突出的表现,以及她们的司法经验更易于获得社会的普遍认同,就在于她们都努力将个人的生活体验融入司法经验之中,不仅善于以"做人"的方式来"做事",而且也习惯于以"过日子"的态度和原则来"工作"。这些典型女性法官的司法经验和形象对于当下中国司法而言,可能意味着不仅要建构一种整体性司法知识观与司法模式,而且也要求中国法官能够运用一种更加实用也更生活化的司法方法。换言之,这些典型女性法官的司法经验对于当下中国的司法及其发展而言,可能意味着要以一种符合现代中国人的生活化眼光和生存性智慧来再造司法的知识理论与实践模式,在促成法律生活与日常生活更加紧密的互动融通的基础上,使司法及其方法更加规范化和生活化,唯此,才可能确保司法在更好地满足社会生活与司法需求的同时推动司法制度的良性发展。     

Quarantined judicial expansion: The environmental legal entrepreneurship of Chinese courts,procuratorates, and NGOs

Although judicial empowerment has become increasingly common worldwide, the expansion of judicial powers in authoritarian countries faces persistent obstacles, such as institutional dependence, lack of political clout, and the repression of civil society. Through empirically examining three cases of environmental legal entrepreneurship under China's new public interest litigation (PIL) system, this study aims to reevaluate the patterns and limits of judicial expansion under authoritarianism. It finds that Chinese judges, prosecutors, and NGOs have been able to leverage the PIL system and their respective institutional advantages to substantially expand judicial oversight on eco-environmental protection. However, the state has established boundaries for such legal entrepreneurship in terms of subject matter, institutional autonomy, and geographic reach, effectively confining them within political spheres considered unthreatening to the regime. Such quarantined judicial expansion shields relevant actors from authoritarian governments' tendency to suppress legal mobilization and thus may be a more viable form of judicial expansion in nondemocratic settings.     

法官造法:司法过程的最高境界

法官造法是英美法系司法的最高境界,是与大陆法系区别开来的基本特征.美国联邦最高法院大法官卡多佐所撰<司法过程的性质>--作为美国司法哲学的代表之作,对法官造法的动因、界限、根据和方法等做出了简明而又不乏深邃的阐释,该书也成为解读英美法系法官造法理论精髓的窗口.     

Judges as satisficers: a law and economics perspective on judicial liability

If judges are guardians of the law, who is to protect the individual member of society from the occasional corrupt, malicious, or reckless judge? The aim of this paper is to provide an answer to the last part of this question, focusing more heavily on cases of negligently inflicted harm. Departing from Simon’s bounded rationality and influenced by other constructs in behavioral law and economics, we view judges as satisficers who make decisions within real-world constraints, such as imperfect information and uncertainty, cognitive limitations and erroneous information. Judges are limited by the commonly observed barriers to the decision making process. Because their goal is not to optimize but to render opinions that are merely satisfactory, they often act as poor agents of their principals’ interests. In this light, it becomes clearer why judges tend to engage in behavior that is “improper”, especially under the circumstances of the currently overloaded judicial caseloads. We first address the differences in judges’ roles in Anglo-American and Continental legal systems. We then present our simple model for judicial misbehavior based on an understanding of judges as “satisficers”. Next we discuss the particularities of judicial errors and introduce a realistic and viable construct of “inexcusable judicial error”. On this basis we evaluate the impact of various incentive schemes on judicial behavior, focusing on the civil liability of judges. We conclude that civil liability for grave judicial errors is the most adequate remedy.     

司法的"场域"分析?--以1997年的一次学术论战为背景的展开

在目前的体制下,司法审判是一个法官由“非司法者”角色向“司法者”角色转换的过程。这种转换是一个法官在多重“场域”夹缝中艰难穿行,并在一个特定的“场域”中进行公共选择的结果。     

Here comes the judge: the influence of judge personal characteristics on federal sexual harassment case outcomes

This study explored the effects of judges' personal characteristics (gender, race, age, and political affiliation) and case characteristics on the outcomes of federal cases of hostile environment sexual harassment. Results revealed that even after controlling for the effects of relevant case characteristics (e.g., severity of the harassment), judges' personal characteristics influenced case outcomes. Specifically, younger judges and Democrat judges were more likely to find for the plaintiff (the alleged victim of harassment). The probability that the decision would favor the plaintiff was only 16% when the case was heard by an older judge but 45% when heard by a younger judge. The probability that the decision would favor the plaintiff was only 18% when the case was heard by a judge who had been appointed by a Republican president but 46% when the judge had been appointed by a Democrat president.     

Understanding Judicial Hierarchy: Reversals and the Behavior of Intermediate Appellate Judges

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide.     

(When) Are Rights Wrong? Rights Discourses and Indeterminacy in Gay and Lesbian Parents’Custody Cases

This paper examines the paradoxical and problematic position of rights discourses in lesbian, gay, bisexual, and transgender (LGBT) parents'custody and adoption cases. In it, I analyze the ways in which different types of rights are framed by the litigants and, alternatively, by the judges, as well as how the same constitutional rights (e.g., the right to privacy) are often deployed both in defense of and in opposition to gay /lesbian parents. An in-depth analysis of judicial decisions over a 50-year period and interviews with key family law players reveal the indeterminacy and therefore complexity of rights as a strategy and a discourse in the family law context. Consistent throughout this analysis are the problematic intersection of the collective and the individual in rights-based claims, and evidence of the distinct nature of LGBT rights claims as revolutionary in both their bases and their implications. The analysis confirms in some ways, but also contradicts and complicates many assertions of the "rights critique" of the past two decades. It also suggests a more complex and less dichotomous relationship between rights, status, and contract.     

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。