常识与理性(八):司法理性之逻辑与悖论

The Common Sense and Rationality Ⅷ:The Logic and Paradox of Judicial Rationality

基于司法理性之逻辑必然,现代司法在迈向专业化或者职业化过程中,不可避免地存在着贵族化与精英化之内在趋向。其中,专业化程度被认为是引领司法达至"效果最优"的基本要素,但贵族化趋向则被认为是诱导司法走向"悖论"的基本因素——它使得司法很可能被异化为一个远离大众、甚至背离常识的封闭市场。为弥补司法职业理性之缺陷,化解其内在的逻辑"悖论",有必要在制度安排上为生活理性渗入高度职业化的司法过程设置某种管道或者窗口,使得司法程序、法官质素以及司法判决更具包容性,并为包容性司法之成长创设制度环境。

Based on the logic inevitably judicial rational and in the professional or specialization process of the modern judicial, it is unavoidable to have a trend towards nobility and elite . Among them, the specialized level is thought to be the basic element leading the judicial to reach “the best effect”. But nobility trend is thought to induce the judicial to “paradox”it makes the judicial likely to be alienated to a closed market which is far away from the public, even departure from the common sense . In order to make up for the defects of rational judicial career and resolve its internal logic “paradox”, it is necessary to set a pipe or window among the system arrangement in or- der to infiltrate the life rational into the highly professional judicial process. If so, the judicial process, the judge quality and judicial decisions will be more inclusive. And inclusiveness of justice can grow in a system environment .