法律推理前提如何获得——以法律心理学为考察视角

法律推理前提之获得又称为法律发现，一度被视为是心理学的研究议题。但是，实际存在的法律发现毕竟为法律证立提供了逻辑起点。而且，探究法律前提获得的机制还可以为人们提高在证成的脉络中提炼证成要件的准确性与效率。我们没有理由放弃对法律发现的深入探讨。法律前提的获得虽然可以从思维与推理的双重加工理论这一新近的心理学研究成果进行普通的阐释，但更要从能够体现法律领域特点的法律认知上进行解读。     

司法过程中的法律发现

司法过程中的法律发现是法学方法论的重要组成部分，它研究的是法官面对个案理解、解释、适用法律的过程。在这一过程中，法官应表达对法律的忠诚并根据案件事实衡平个别正义。法官之所以在司法过程中发现法律，乃是因为法律适用就是法律解释，没有法官对法律和事实的理解，就不可能有法律适用。依照法治原则，发现法律首先应从法律正式法源中去寻找，只有当正式法源中没有明确标准或虽有标准但该标准与个案正义严重背离时，才在非正式法源中寻找可以接受的答案。     

Diffusion as a Process of Creative Adoption

This paper elaborates an integrated framework for understanding diffusion as a process of creative adoptions in the business sector. Within the context of the economics of localized technological change, adoption is viewed as a complementary component of a broader process of adjusting the technology when unexpected events in the product and factor markets push firms towards a creative reaction. When the stock of adoptions exerts a suitable combined effect both on the gross profitability of adoption and on the costs of adoption, such that the net profitability of adoption and hence the rates of new adoption follow a quadratic path, the dynamics of creative adoption can engender a S-shaped diffusion process.     

Justification Under Uncertainty

There is a controversy as to the moral status of an action in the face of uncertainty concerning a non-moral fact that is morally significant (according to an applicable moral standard): According to the objective conception, the right action is determined in light of the truth, namely the actual state of affairs (regarding the pertinent fact), whereas according to the subjective conception, the right action depends on the epistemic state of the agent, namely her (justified) belief (concerning the pertinent fact). A similar debate concerns the law, with respect to uncertainty regarding a legally significant fact. In this paper, I argue that moral and legal normative concepts are ambiguous and include two aspects: The ideal aspect, which is concerned with the constitutive feature of the normative standard, and the pragmatic aspect, which determines the correct action under uncertainty. With regard to each aspect, a different conception is appropriate: The objective conception should govern the ideal aspect and the subjective conception the pragmatic aspect. And the relevant aspect (and therefore the appropriate conception) depends on the question under consideration regarding the pertinent normative standard: what is its constitutive feature or whether an action is right (according to the applicable normative standard) in the face of uncertainty.     

法律拟制正名

<正>法律拟制的概念尽管可以追溯到古代罗马,但直到今天人们对它的理解和使用仍是众说纷纭和五花八门的。法律拟制作为一个与法律相伴生的古老现象尽管今天仍具有存在的基础和价值,但至今人们对它的态度却是讳莫如深的。孔子曰:"名不正,则言不顺;言不顺,则事不成。"尸子曰:"天下之可治,分成也。是非之可辨,名定也。"正名,可以是价值评价上的正名分,也可以是概念分析上的正名实。为法律拟制"正名",就是要廓清法律拟制的概念、揭示法律拟制的存在基础和价值。     

Revisiting Kantian Retributivism to Construct a Justification of Punishment

The standard view of Kant’s retributivism, as well as its more recent reworking in the ‘limited’ or ‘partial’ retributivist reading are, it is argued here, inadequate accounts of Kant on punishment. In the case of the former, the view is too limited and superficial, and in the latter it is simply inaccurate as an interpretation of Kant. Instead, this paper argues that a more sophisticated and accurate rendering of Kant on punishment can be obtained by looking to his construction of the concept of justice. In so doing, not only is a superior account of Kant furnished, but also one up to the task of resolving the vexed issue of justifying legal punishment.

On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse

The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. The law has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury is present.

Implementing Prior Judicial Decisions as Precedents: The Context of Application and Justification

The paper concerns the conditions and methods of using previous judicial decisions as a kind of precedents in the processes of application of law within the statutory legal order. The use of such decisions, not announced by the legislator, depends on the courts, undertaking such actions on the grounds of similarity of cases or of decisional processes. Such decisions do not become an exclusive validation argument and may create a situation of their potential conflict with legal regulations as well as an inferential supplementation of their content. Dissemination of such activity of the courts leads to the development of precedential practice (relevant to the statutory legal order), though, its actual jurisdictional role depends on proper justification of decisions, within which reference to these decisions should be adaptive (in relation to the elements of the current case), generalizing (forming elements of ratio decidendi) as well as argumentative and discursive (in respect of the way in which the decisional reasoning and arguments expressed in the prior justification are used).

     

A Justification of Command Responsibility

In this article, I advance a culpability-based justification for command responsibility. Command responsibility has attracted powerful, principled criticisms, particularly that its controversial “should have known” fault standard may breach the culpability principle. Scholars are right to raise such questions, as a negligence-based mode of accessory liability seems to chafe against our analytical constructs. However, I argue, in three steps, that the intuition of justice underlying the doctrine is sound. An upshot of this analysis is that the “should have known” standard in the ICC Statute, rather than being shunned, should be embraced. While Tribunal jurisprudence shied away from criminal negligence due to culpability concerns, I argue that the “should have known” standard actually maps better onto personal culpability than the rival formulations developed by the Tribunals.     

儿童作为权利主体在人权理论上的证成与限度

西方学者对于儿童是否可以拥有权利的理性反思最初是在人权维度上展开的,他们依据人权的论证逻辑来论证儿童是人,因为他们是人,他们就应该享有人之为人的权利,儿童权利乃是一种不可剥夺的道德权利.无可否认,儿童作为权利主体在人权理论上的证成对于发掘儿童的内在价值、认真对待儿童权利、丰富人权理论具有十分重要的意义.但是由于这种论证过于简单和粗糙,其存在着对于人权理论中“人”的含义的重大误解,缺失对儿童这一群体特殊性的关注及其对儿童权利认识的有限性和不充分性等问题.     

身份犯的处罚根据论

身份犯的处罚根据问题是身份犯理论研究的基础性范畴,它直接决定了身份犯具体问题的展开。发端于大陆法系刑法中的"义务违反说"、"法益侵害说"以及建立在二者基础之上的"综合说"都不能圆满地说明身份犯的处罚根据;我国学者关于此问题的个别看法也不无纰漏。以"身份法益侵害说"作为身份犯的处罚根据,则是一种合理的选择。     

The Hurried Justification of Sanctions

In this paper I try to see how the Derridean aporias of the law of the urgency of legal decisions (the law interrupts the input of knowledge in the decision-making process) and the épokhè of the rule (justice can never be done in the present) are revealed in the context of the justification of sanctions. I argue that sanctions can only be justified in a purposive manner in the last instance. They can only be means to an end of punishment which has been opted for, and which can be justified on grounds of principles, or an authoritative calculation of incommensurable entities. I argue against theories, which advocate the internal connection of law and morality, because if such a connection could be established, the aporia of the hurried and unjustified action would obviously disappear. In particular my target is discourse theory as formulated mainly by Robert Alexy with his Sonderfallthese(Special Case Thesis). My objection is that, because of their instrumental nature, sanctions cannot be justified on moral grounds. I also consider some objections that could be raised from Klaus Günther's theory of appropriateness and Habermas' distinction between the moral, ethical and pragmatic employments of practical reason. I am argue that the former, which would become relevant at the stage of application, that is sentencing, does not resolve the justificatory problem of sanctions, and the latter confirms rather than falsifies my claim that punishment can never be said to be just.     

著作权合理使用制度之正当性研究

著作权"合理使用"制度是各国著作权制度中对著作权限制的主要内容。合理使用制度体现了著作权法保护作者和其他著作权人的利益与促进知识与信息广泛传播的双重目的。合理使用的正当性可以从多方面加以认识,包括激励与接近之平衡、宪法与公共利益、以交易成本和古典经济学为基础的经济学分析等。在网络环境下,著作权合理使用制度仍然有其存在的合理性。我国颁布实施的《信息网络传播权保护条例》对合理使用的规定即是这种体现。     

融贯性论证的整体性面向

法律论证的正确性宣称,一方面要求一个正确的司法决定应当能够根据有效法逻辑地推导出来,另一方面要求所适用的法律规范本身是合理或公平的。前者需满足逻辑一致性的要求,表现为演绎式的线性证立方式;后者需满足融贯性的要求,表现为各个理由之间的相互支持关系,是一种整体性的证立方式。坚持融贯性标准的法律论证,在本质上是一种整体性的证立方式。     

Sub-Optimal Justification and Justificatory Defenses

Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are (exceptionally) justified—usually since they prevent (more serious) harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies (also) to actions that do not reflect all pertinent principles optimally due to (unjustified) mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal (particularly criminal) liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical (negative) reaction is in place only with regard to actions whose wrongness is above a minimal threshold.     

专利强制许可的正当性

强制许可实施专利是一种最具代表性的专利权利限制制度。强制许可符合专利授权的根本目的,有效弥补了专利垄断的制度性缺陷,对保障基本人权,促进技术的应用与发展,平衡发明人与社会公众的利益关系,维护正常的社会生活和经济秩序都有非常重要的意义。这一制度符合人类社会的理性逻辑,具有高度完整的正当性。     

Justification and Application of Norms*

Abstract According to the author there is no doubt that one has to distinguish between the justification and the application of norms. Problems are seen only to arise if one asks what exactly the distinction is and which consequences have to be drawn from it. Recently, Klaus Günther, in particular, has searched for this distinction and connected it with far-reaching conclusions concerning the theory of norms, arguments, and morals. His theses are the object of the author's considerations.