美国司法裁判理论重构——塔玛纳哈均衡现实主义理论述评

Reconstruction of Theory on American Judicial Decisions: Comments on Tamanaha′s Theory of Balanced Realism

司法裁判理论是美国法理学核心问题之一。其中,法律形式主义与法律现实主义的争执贯穿始终、交替登台。塔玛纳哈则否认在美国存在法律形式主义时期,并试图纠正将法律现实主义归结为极端规则怀疑主义的传统认识。在此基础上,他提出了"司法裁判均衡现实主义"理论,将规则约束与规则怀疑作为其均衡现实主义的两个基点,不仅试图重塑法律现实主义的形象,而且要重构司法裁判理论。

The theory on judicial decision is one of the core topics of American jurisprudence. The dispute between legal formalism and legal realism is the main clue along the American jurisprudential history and each became the leading actor alternately. Tamanaha denies the existence of legal formalism in the period of the American legal history, and he tries to change the traditional understanding about the legal realism as extreme skepticism. On this basis, he puts forward to his theory of balanced realism which takes the rule -bound and rule -skeptical as two basic points. He is not only trying to reshape the image of legal realism, but to reconstruct the theory on judicial decisions.