冲突与协调:司法应对民意的理性思考

Confliction and coordination:rational thinking of justice response to public opinions

司法要不要考虑民意,与如何看待司法理性有关。从功能理性的角度分析,司法与民意之间的关系就是在司法过程中准确地界定法律规则和民意的地位与功能,使其能够在各自范围之内得以适当的发展。分析我国司法实践中民意对司法产生的效应和影响,提出通过养成法官公共理性、以正当程序疏导民意、认真对待公民诉权等措施对其予以规范,从而培育司法的功能理性。

Whether justice should consider public opinions or not is related to how to treat justice rationality. Analyzed from the perspective of functional rationality, the relationship between justice and public opinions is to accurately define the status and function of legal rule and public opinions in judiciary process, so as to develop them appropriately in their respective range. The effect and influence of public opinions on justice during judiciary practice in China are analyzed, and measures are proposed of cultivating the public rationality of judges, diverting public opinion in due process, taking citizen＇ s suing right seriously, etc., in order to cultivate the functional rationality of justice.