法官思维中的艺术——基于一种博弈的立场

法官的思维游离于有与无之间、贫与富之间、生与死之间。之所以如此评价,是因为法官思维的瞬间转换便可能使某人失去了财产、自由、子女甚至生命,因此法官的思维对案件判决结果有终极意义。所以本文拟以法官的三种对立型思维博弈的为切入点,得出了对克制性、独断性、修辞性思维的推崇。但深究起来,三类思维的背后都是一种对法律规则的回归,因此法律思维的艺术本质上就是一种信仰规则的艺术。

The Art in The Judge's Thinking——On a background of the gambling

Judge’s thinking drifted away between the have or not,between the rich and poor,between the life and death,the reason so appraises is because an instant transformation of judge ’s thinking possibly caused somebody to lose the property,the freedom,the children and even life,so judge＇s thought had the ultimate significance to the case ruling.Therefore,this paper will use the gambling of three kind of judge’s thinking as the breakthrough point,obtained to support the restrained,arbitrary,and the rhetoric thought.But goes into seriously,behind three kind of thought is a return to the legal rules,so the art of the judge’s thinking is the art of a belief in rule essentially.