法律是一种理性对话——兼论司法判例制度的合理性

Law as a Rational Dialogue: A Vindication for the Case-law Method

一、引言:法律(应该)是什么?1.关于法律性质的两种观点法律向来被认为是一种主权意志的命令。无论从法理学。

It is generally believed that laws are coercive commands as pronounced by the sovereign states,and these commands derive their force from the punitive measures imposed upon their violations.Although the command doctrine explains the static nature of law,however,it fails to answer some of the key questions:how and for what purpose was a legal command created at the first place,and how does it evolve later?This paper argues that,in a modem society committed to rule of law,law in its dynamic character is a perpetual process of rational discourse.Such a discourse is a free,equal,and open reasoning process widely participated by different sections of society for the benefit of public good,in which different opinions are respected and their thorough expressions guaranteed.The paper will focus on discussing the processes of legal dialogue already institutionalized in the states committed to role of law;particularly,it emphasizes the aspect of free exchange and expression among different opinions within the independent judicial institutions.It is pointed out that the case law as formed by the common law courts,particularly its prominent feature of allowing free publication of the dissenting opinions,help to guarantee the stable development,reform,and evolution of law in a changing society.