公众意见在裁判结构中的地位

从裁判依据的类型分析,公众意见只能作为一种事实依据,参与个案裁判。在常规案件中,公众意见作为一种准用的辅助性依据,可以通过弱的裁量成为合理化判决结论的说明性事实。在遇有法律漏洞的疑难案件中,与社会性主张相一致的公众意见,如果耦合法律体系中的法律原则或基本权利规范,可以籍由强的裁量充当个案推理的运作性依据,成为非常情形中正当化个案规则创制的立法性事实。在日趋多元化和复杂化的转型中国,法律系统必须在稳定性和灵活性、普遍正义和个案正义之间寻求一种平衡;判断公众意见的个案裁判地位,同样需在辅助性依据或运作性依据、说明性事实或立法性事实之间寻求一种平衡。

The Role of Public Opinion in Adjudication

Due to the operative closure of the legal system and the constitutional constraints on legitimate resources of law in legal decision making,public opinions could not be directly cited as first-order warrant in legal justification.The typology of legitimate legal reasons shows that public opinions have no normative force in justifying a legal consequence even if the court is substantially influenced by them or they causally determine the consequence.In other words,they are mere facts. In easy(or ordinary) cases,however,public opinions might be treated as explanatory facts and thus supplement legal justifications in weak judicial discretions.This is the ordinary role that public opinions play in adjudication.They are the subsidiary reasons involved in the consequence-oriented legal reasoning when the court adjudicates a specific case.Subsidiary reasons(or explanatory facts) define or explain the actual spectrum of possible decisions but they neither legitimate nor support legal decisions from the normative point of view. On the other hand,in hard(or exceptional) cases involving legal loopholes and thus inviting strong judicial discretions,public opinions might constitute substantial justifying reasons which justify specific decisions if they are supported both by strong social propositions and constitutional right norms(legal principles).These justifying reasons incorporate normative claims like "ought" or "ought not," but they are the products of legislative facts.These legislative facts via social propositions constitute the basic justifications when the courts resort to judicial law making or policy making. The crucial process in the whole structure of applying public opinions in legal adjudication lies in distinguishing ordinary circumstances from exceptional ones,subsidiary reasons from justifying ones,and explanatory facts from legislative ones.In transitional China,with increasing diversity and complexity,legal system needs to maintain a subtle balance between stability and flexibility as well as universal justice and particular justice.A balance is also needed between subsidiary reasons and justifying ones as well as explanatory facts and legislative ones when incorporating public opinions in legal adjudication.