摘要
司法过程中的演绎推论,是指裁判者依据既定的法律规则和形式化的推论过程,在法律规范与个案事实之间建立起一种必然的涵摄关系,并借此得出一个正当的个案裁判,以实现和维护形式法治。但演绎推论预设的两个适用条件:法律体系的公理化和法律命题的形式化,在实践中往往是成问题的。演绎推论对规则和逻辑的倚重,会使裁判者过于墨守现有的规范,并导致法律趋于僵化和保守。虽然作为辅助手段的法律解释能够消除推论过程中的一些问题,但囿于演绎推论对评价和实质性理由的排斥,其功用也是有限的。
The rule of law means ＂ruled by rules＂, not ＂ruled by man＂. Deduction is characterized by generality and impersonality, and can restrict judges＇ discretion effectively when applied as a kind of judicial technique in adjudication. Analyzing the inferential structure of deduction, we can find that it emphasizes the authority of stated premises and the certainty of conclusions. So in the judicial process, it can he used to emphasize the authority of major premises （i. e. legal rules）, and to provide judicial decisions with ultimate persuasions.
Deduction is the fundamental judicial technique for advancing and preserving the rule of law. It has two virtues in judicial decision-making. First, it can help the judges use inferential formula to make a subsumptive relationship between the normative evaluations and individual judgments. At this point, inferential formulas mean directions and restrictions to iudges. Second, it can help the judges to reconstruct the judgment by logical methods, and analyze the judgment＇s formal validity or rationality in logical perspectives.
However, the using of deduction needs some presuppositions. When a judge makes a judgment by deduction, he must make sure that the pending case has been subsumed in the stated rules, and he can equate the legal rules and pending case with symbolic logical forms. For this reason, the application of deduction needs two normative presuppositions, i.e. an axiomatic legal system and the formalization of legal propositions. But legal practices indicate that these two presuppositions are problematic in practice. An exactitude and consistent axiomatic system including every decision for all pending is usually considered as a noble dream of legal lawyers. In addition, not all the legal propositions have the formal structures required by deduction.
The fundamental objective of deduction is the legality of judgments. But judges usually have to get such legality at the expense of legitimate considerations outside the legal system. This char
出处
《浙江大学学报（人文社会科学版）》
CSSCI
2007年第1期153-160,共8页
Journal of Zhejiang University:Humanities and Social Sciences
基金
浙江省社科规划重点资助项目(06CGZF05ZG)
关键词
裁判
规则
演绎推论
法律解释
adiudication
rulesl deduction
legal interpretation
