论教义式法律思维与司法形式主义的谋合

On the Cooperation of the Doctrine Legal Thinking and the Judicial Formalism

十八届四中全会再次强调"建设法治国家",并明确要求要善用法治思维与法治方式考虑问题。这不仅说明了法律思维的重要性,而且也必然关涉法律和司法的理念定位与技术选择。在司法向度内,司法形式主义与教义式法律思维作为一种经过长期累积而形成的稳固的知识体系,表征着司法的基本规律,具有一种不可替代的本源性、基础性和优越性;它们也因共享形式性、逻辑性和程序性而高度谋合,并一起合理而高效地维护着法律安定和司法正义。不过,它们也有层次之别:司法形式主义是抽象层面的司法理念,是实现实质正义的前提和基础,因而应成为我国当下司法的元理念;教义式法律思维属于具体层面的司法技术,其安全又极易操作,理应成为我国当下司法的首要方法。因此,坚守司法形式主义理念与教义式法律思维方法应是我国当前司法的理想选择。

The fourth plenary session of the 18th Communist Party of China （CPC） Central Committee stressed again on ＂building a country ruled by law＂, and clearly call to make the best use of the legal thinking and the way of ruling by law. This does not only mean that the legal thinking is important, but also means that ideas and technology choice are also important. Within the judicial dimensions, judicial formalism and the legal thinking of doctrine as a solid system of long- term accumulation and the formation represent the basic rule of the judicial practice which has an irreplaceable advantage. They are sharing the similar forms, logical and procedural features, so they cooperate with each other highly and safeguard the legal stability and judicial justice reasonably and effectively. But they also have different tiers. The legal thinking of dogmatics is the concrete level judicial technology, which is safe and easy in operation. It should be the preferred method of our current judicial practice. Judicial formalism is the abstract level of the judicial idea which is the premise and basis to realize the substantive justice and thus should become the element of the judicial concept. Because of it, upholding judicial formalism and the legal thinking of doctrine should be a good choice of the modern China＇s judicatory.