法律约束、个案正义与司法论证——对自由法学的另一种解读

19世纪末的自由法学认为,实在法是存有漏洞的,法官的任务便是进行漏洞填补.为解决法官"法律约束"与"个案正义"难题,自由法学将法官裁判区别为"主观动机"与"客观论证"结构,并将法律约束置于"客观论证"层面,通过公开论理使暗含在判决中的法官"主观动机"以客观化的方式展示出来.对此,纯粹法学通过法位阶秩序理论予以批判,然该批判误解了自由法学的理论诉求,同时也就无法洞悉司法过程的真实状态.

Legal Restraint, Justice for Individual Case and Judicial Reasoning:An Alternative Understanding of Free Law School

At the end of 19th century,supporters of free law school argued that there were loopholes existed in positive law,and judges’role,thus,was to fill up those loopholes. In order to solve the tension between "legal restraint"imposed on judge and "justice for individual case", judgments made by the judge had been distinguished into two types by free law school: "subjective motive"and "objective reasoning". With legal restraint being subject to "objective reasoning", the "subjective motive"of the judge implied in the decision-making process could be revealed in an objective way through open reasoning process. The pure theory of law criticized this by relying on the theory of hierarchy of legal norms. However,their criticism misunderstood the theoretical arguments upheld by free law school,and accordingly,was not in a position to know clearly the actual status of judicial process.