法律方法是法官对判决的合理化手段吗

Is Legal Methodology Judge's Rationalization of the Judgment?

当前我国学界存在关于法律方法的"肯定论"与"否定论"之争。否定论认为法律方法是法官对判决的合理化手段,它被法官用来掩盖形成判决的真实原因以及其内心真正的判决理由。肯定论基于对判决原因与判决理由的区分,以及表面理由与真实理由的区分,主张法律方法能够指引和证立法官裁判。分析这一争论的关键在于厘清"合理化"在何种意义上是一种论证上的错误。当论证者在不同论证情形中未能贯彻同一前提立场,就违背了其追求立场融贯的道德责任,他在表面上所依赖的理由就在事实上沦为了将其其观点合理化的工具。要避免法律方法沦为法官裁判的合理化工具,须重构指引法官运用法律方法的元规则:法官应基于对相关法律方法背后诸价值的诠释,以及对这些价值之间关系的处理,来具体决定在个案中应当适用何种法律方法。

At present, there are two positions in the academic circles concerning legal methods: the affirmative theory and judicial meretricious theory. The judicial meretricious theory holds that the legal methodology is a means used by the judge to rationalize the judgment, conceal the actual cause for concluding the judgment and the real reason of the judgment in the judge's heart. The affirmative theory, on the basis of the distinction between the cause of judgment and the reason of judgment as well as the distinction between the superficial reason and the actual reason, holds that legal methodology may direct the judge to make judgment and justify the judgment.The key to discuss such debate lies in the clarification that in which sense the rationalization is an argumentative mistake. When the arguer cannot stick to the same preconditional stance in different argumentative situations, he breaches the moral obligation of seeking a consistent stance and the reason which he superficially relies on is factually reduced to a tool for rationalizing his view. To avoid the situation that the legal methodology is reduced to a tool of the judge for rationalizing the judgment, the meta-rules directing the judge to apply the legal method must be amended: the judge shall determine which legal method shall be adopted in an individual case on basis of the explanation of various values behind relevant legal methods and the treatment of relations among such values.