论常识判断与法律判断的衔接与转化

On the Connection and Transformation between Common Sense Judgment and Legal Judgment

近十年来,我国出现了一些激起社会各界广泛争议的案件,这些案件引起了对公众的常识判断与法律判断之关系的探讨。然而,目前的理论研究因缺乏对常识的本质进行分析,普遍对常识判断与法律判断做异质化处理,这种思考方式并不有助于做出合理的司法裁判。从常识哲学来看,常识判断的正确性并不当然弱于其他类型的判断,它反而与广义的理性等义并且是推理的根本基础。司法裁判要进行合理的归责,就必须实现常识判断与法律判断的衔接及转化。哈特的"承认规则"可被视为是在理论上探讨作为非制度性规范的常识向制度性规范的转化,阐明司法裁判得以从日常生活方式中获取规范性内容的理论进路。

Many controversial cases in recent decade aroused the discussion of relation between common sense judgment and legal judgment. Contemporary legal study in China is short of the analysis for the nature of common sense. Moreover, these study wildly consider common sense judgment as something that is different from legal judgment in nature. However, based on common sense philosophy, the correctness of common sense judgment is not weaker than any other type of judgment. Common sense is equal to rationality in broad sense and is the foundation of reasoning. If a judicial decision wants to achieve imputation reasonably, then it must achieve the connection and transformation between common sense judgment and legal judgment. At last, I try to use H. L. A. Hart＇ s rule of recognition as a tool to realize the transformation from a non - system common sense to a norm in a legal system. Hence, this article will demonstrate the way for judicial decisions to obtain normative content for people＇ s ordinary lives.