规范裂缝的判定与解决

On the Indentifying and Resolving of the Normative Gaps

规范裂缝是指规则指示的结果与其背后的正当化理由所指示的结果不一致。它通常表现为原则与规则的冲突。规范裂缝的存在意味着在遵守规则与做正确之事之间存在着内在冲突,它是规范的不完善状态,应该予以消除。规范裂缝理论大致包括三个基本问题,即规范裂缝的判定、类型与解决原则。法律具有权威性、规则性和体系性等结构性特征,它们既造成法律规范裂缝的判定与解决的特殊困难,也提供了根本性和支配性的原则,即无论是规范裂缝的判定还是解决,都必须建立在既有的权威性理由之上,不得简单地诉诸个人慎思或道德权衡。法律推理的研究应该加强对法律性质的法哲学反思。

The normative gaps which normally represent conflicts between rules and principles come from inconsistence of rules and the underlying reasons. The normative gaps signify an internal tension between following rules and doing right things. As a deficient state of norms, the normative gaps should be erased. The theory of normative gaps should handle three issues: identifying, classifying, and resolving the normative gaps. The structural-normative features of law such as authoritative, ruleness, and systematic lead to special difficulties of indentifying and resolving the normative gaps, but these features also provide fundamental principles for the indentifying and resolving, which must only rely on authoritative reasons other than common prudence and moral reasoning. The studies of legal reasoning should get inspirations from reflections of the nature of law.