法律推理和道德推理虽然在目的、价值和形式上都存在区别,但二者同样作为一种社会性规范的表达,因此就也就具有某种共通性.这种共通性主要表现在法律和道德判断都必须保持某种程度的一致性,即保证当前的判断必须和之前的判断保持一致.怀疑主义者认为不论是法官还是做出道德判断的人都可以根据当前情境的特殊事实而排除先例的适用进而得出和先例不同的判断.这一点足以否定法律判决和道德判断对一致性的要求.但作者认为,这种通过类比来确定当前的情境能否适用先例的推理方法其实正是法律和道德具有一致性的表现.区别作为一种普遍性的方法,应当普遍地被运用到全部法律和道德判断中,唯此方能确定先例能否适用于当前的情境.这样,人们就能从对当前情境和先例的比较中得出与先例一致的判断,或者依据一种普遍性的推理方法而普遍地排除先例及其规则的适用.这样的推理模式既典型的存在于法律中,同样也可以被运用于道德判断.
The rule of law rests on the quality of legal reasoning. The rule of law requires that similar cases should be decided similarly, that each case should be decided on its merits, and that decision-making processes should comply with applicable rules of procedure and evidence. Making the reasoning behind such decision-making transparent and open to scrutiny shifts the decisions away from mere subjective preference and toward objective rationale. An important means, therefore, of achieving the rule of law is articulating and evaluating the various elements of legal reasoning—the reasoning involved in interpreting constitutions, statutes, and regulations, in balancing fundamental principles and policies, in adopting and modifying legal rules, in applying those rules to cases, in evaluating evidence, and in making ultimate decisions. Despite our need for transparent and sound reasoning, we in the legal profession devote surprisingly little research to developing our own general methodology. This is in dramatic contrast to other fields and professions. We are not like mathematicians, whose reflection on their own method has given the world axiomatic proof and modern deductive logic. We are also unlike statisticians, who have developed the analytic methods in use in all areas of empirical research. Nor do we act like natural and social scientists, who carefully combine statistical methods with techniques for measurement and modeling that are tailored to their particular subject matters. Nor do we take the approach of the medical profession, which has refined various methodologies for diagnostic reasoning. We in the legal profession largely content ourselves with “knowing good legal reasoning when we see it.” We spend relatively little time refining general methods for discriminating between good patterns of reasoning and bad, or developing theories for explaining precisely why good patterns are good and bad patterns are bad. In sum, we do not pay particular attention to the logic of legal reasoning. For a
传统法律符号学把法律当作一种由法律符号组成的符号体系,应用符号学的观点和方法分析法律现象,其可以与霍菲尔德的权利分析理论相互交叉,并在这个过程中结合司法实际的案例,以此来展现霍菲尔德式的法律和符号学方法的理论及其应用.这种方法将法律概念引入一定的语言系统内,注重概念之间互相的关系,这就为认识法律概念的本质提供了路径,同时为实践中分析具体案件中的法律概念——尤其是以此为基础进行法律论证时提供了多种角度和思路.虽然文章多从美国的法律和司法实践出发进行论证,但是在方法上仍然可以为我国的司法实践提供许多借鉴.
The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges. Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judge’s own intuitions. Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning, Thomas R. Lee and Stephen Mouritsen argue that courts should “import” into the law of interpretation computer-aided means (primarily, corpus analysis) of determining “the sense of a word or phrase that is most likely implicated in a given linguistic context.” In the view of Lee and Mouritsen, statutory interpretation is an “empirical question” (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics. The potential judicial adoption of interdisciplinary knowledge and techniques from fields such as linguistics is intriguing, and the resulting discussions from such proposals will enhance both the theory and practice of legal interpretation. Nevertheless, anyone advocating for the judicial adoption of a significant and novel interpretive source bears the burden of offering a compelling explication of the interpretive source and its role within the structure of interpretation. This demonstration should establish that the new interpretive source offers some comparative advantage to existing interpretive sources and is feasible in the sense that judges can competently use it. The advocate must therefore offer a compelling theory of how the interpretive source fits into existing processes of interpretation and explain whether the new interpretive source requires a new way of viewing those processes. With corpus linguistics, some of the issues that should be addressed therefore include: (1) how corpus linguistic analysis is relevant to some objective of interpretation currently identified by judges, such as the determination of ordinary meaning; (2) whether corpus linguistics should displace long-standing interpretive sources, such as dictionaries and textual canons; (3) the extent to which corpus linguistics can take account of the relevant context of a statutory provision; (4) to what extent determining statutory meaning is an empirical endeavor (with or without corpus linguistics); and (5) whether judges have both the technical ability to conduct competent corpus analyses and sufficient linguistic expertise to evaluate the raw data and make judgments of the kind made by trained linguists. In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues. We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.
Mr. McLeod argues that the role of rules in judicial decision-making is commonly misunderstood by both the formalists and realists. The rehabilitation of rhetoric in fields of study outside law suggests a novel and useful insight for jurisprudence: judges neither mechanically apply legal 'commands' nor exercise arbitrary, subjective preferences. They engage in a process of argumentation structured by the 'wishes' of statute and precedent, and directed towards persuasion of their anticipated audiences. Mr. McLeod offers the reasons of the Supreme Court of Canada in Hunter v. Southam Press as an example of rhetorically structured argument. The Court was required to interpret the new Canadian Charter of Rights and Freedoms section 8 which prohibits "unreasonable search or seizure". He argues that though the Court could not define 'unreasonable' with reference to any prior fixed rules, it was not compelled to exercise arbitrary and subjective preferences. The decision is best understood when analyzed in light of the Court's rhetorical obligations.
