依法裁判与民意诉求——基于弹性法律秩序的方法论反思

Between Legal Requirements and Public Opinions:A Methodological Reflection Based on Law as A Flexible Order

破解依法裁判与民意诉求的张力所带来的困局,关键是要认识到:一,多数案件中法律与民意不存在绝对冲突;二,依法裁判既非僵化的形式主义之概念,也非怀疑论所言的神话迷思。法律作为弹性秩序,允许裁判者在坚守依法裁判之法治义务的同时,尽可能尊重和吸纳民意中的正当要求,努力兼及二者。法学方法论是为测度此一弹性限度的工具,而论证负担的给予和司法程序的安排为其提供了理性和制度保障。

It is a dilemma for a judge who faced with the double demands of adjudication pursuant to law and of respect for public opinions. There maybe two ways to free oneself from the dilemma: first, there is no absolute conflict between legal requirements and public opinions in most cases, instead it is opinionsclash between judges and ordinary people for understanding statutes or tension between obligation to obey the law and individual justice; secondly, adjudication pursuant to law is not a rigid concept of formalist jurisprudence or a myth like what legal sceptics thought of. Law is a flexible order which makes it possible for judges to respect and even absorb reasonable parts of public opinions as much as possible on the premise that complies with their obligations of the rule by law. The limits of the flexibility can be measured in legal methodology while allocation of the burden of argumentation and arrangement in legal procedure will provide a rational justification and institution guarantee.