中国传统法官的实质性思维

The Substantive Way of Thinking of Chinese Traditional Judge

中国历史上的传统法官是非职业化的法官,其思维是一种平民式的追求实质目标而轻视形式过程的思维。这种思维方式可称为实质性思维,与形式性思维相对。具体表现为传统法官在法律与情理关系上往往倾向于情理;在法律目的与法律字义面前倾向于目的;在思维方面“民意”重于“法理”,具有平民倾向,把民意作为衡量判决公正与否的重要标准;思维时注重实体,轻视程序。尽管中国传统法官的思维方式与后自由主义西方法官的思维逻辑有某种契合,也尽管法律形式主义本身也存在一些问题,但对于当代中国而言,我们更需要一种法的形式理性。

In ancient and medieval China, there had never been such professional lawyers like that in Western context. The so-called judges in so many dynasties in China were not a kind of legal profession, they were just administrative officials and were subject to administrative power. Under the siege of political groups, the legal formalism did not grow until very late in China, therefore, there did not exist a community of lawyers', let alone the professional legal training at that time. So the “populist judges” in this article are not professionalist judges, they do not belong to the jurists by their lack of autonomy, moreover, there was not any posibility to form a professionalist legal community which could promote the law development.As far as we know, judicial professionalism requires that judges should have some kind of professional way of thinking which is quite different and apart from the popular thinking of layman's and the political thinking of politician's, even though the judicial democratism insists that judges should emphasize public opinions and interests of common people in order to satisfy the substantive requests of the mass's. On the contrast to legal formalism, the way of thinking of Chinese traditional judges was a way which emphasized substantive goals and despised formal proceeding, and which is called substantive thinking. The main points of substantive thinking includes in the following: to pay attention to the content, purpose and result of the law, but look down upon the form, means and procedures of the law; to emphasize the ideology of legal activity, but ignore the technological form of legal activity; to seek the facts outside the law, but disfavor the logic in the law.Generally the factors that caused substantive thinking of our traditional judges can be concluded as the following: culture, language and organization.The surprising thing is that while such substantive thinking inclination has being denied in contemporary China, it has being recognized for the law renovaton in the West. Thus, the thinking way of Chinese traditional judge has some similar to the thinking of those judges who persist the legal thought of post-liberalism. Still then, such a substantive mode of thinking, is some danger to rule of law to contemporary China. Though it self has some problems, and it has been criticized too, for contemporary China, the legal formalism, ″the law that can be relied on like machine″, is far more necessary than that legal substantive rationality for the rule of law in China Therefore, we expect that Chinese law would move towards formal rationality.