论法律推理中的道德衡量

On the Moral Judgment in Legal Reasoning

法律推理中的道德衡量是推理主体在综合考虑具体语境的基础上进行的自觉道德权衡,它具有个体性、自觉性、语境性与可沟通性的特点。道德衡量不仅作用于法律推理的结论,影响着具体裁量结果,而且作用于法律漏洞修补、规则与原则冲突、原则与原则权衡之中,影响着推理理由的选择。由于其个体性和语境性,道德衡量有擅断和恣意的危险,但由于其自觉性和可沟通性,通过主体间的商谈,恣意和擅断又能够被规避。

The moral judgment in legal reasoning is a subject-self-conscious moral tradeoffs in the specific context. It has the characteristics of individuality, self-consciousness, context dependent and communicability. Moral tradeoffs not only play a role in the conclusion of legal reasoning, but also influence its process, the repair of loopholes in the law, the conflicts between regularity and principle, and the balance between principle and principle rights. Due to its individuality and context dependent, moral judgment has the risk to become wanton, but thanks to its self-consciousness and communicability, it is possible to effectively avoid the arbitrariness through the inter-subjectivity communication.