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法律判断过程的核心特征在于反思平衡。不仅对于最终判断的确定,而且对于思考系统内其他要素的确定和法律方法的选择运用,反思平衡都起着决定性的作用。反思是一种双向而非单向、动态而非静态、多方面的思考过程。从事实到规范,从规范到事实;从前提到判断,从判断到前提;从法意识到论证结构,从论证结构到法意识;从自我到他者,从他者到自我,不断地循环往复运动、来回思考。平衡是反思的取向,是诸要素之间的相互适应、协调一致,最终的判断是诸要素平衡的产物。在反思平衡的过程中,判断者的理性和直觉相互制约,共同作用,推动判断的形成。反思平衡既可以看作一种思维过程,也可以视为形成判断的方法,还可以视为法律判断与其他要素之间关系的状态。法律判断过程通常并非只运用某种单一的方法,而是涉及诸多方法的有意无意和综合的运用。反思平衡代表着诸多具体方法的集合。
The key feature of the process of legal judgment lies in the balance of reflection. Not only the determination of the final judgment, but also the determination of other elements of the thinking system and the selection and application of legal methods, the balance of reflection plays a decisive role. Reflection is a two-way rather than one-way, dynamic rather than static, multi-faceted thinking process. From the fact to the norms, from the norms to the facts; the former refers to the judgment, from the judgment to the premise; from the law consciousness structure, from the argument structure to the law consciousness; from the self to the other, from the other to the self, continuously reciprocating Exercise, think back and forth. Balance is the orientation of reflection, the mutual adaptation and coordination among the various elements, and the final judgment is the product of the balance of the various elements. In the process of reflecting on the balance, the judge’s rationality and intuition restrict each other and work together to promote the formation of judgment. Rethinking the balance can be seen as a thought process, as a way of forming a judgment, and as a state of legal relations with other elements. The process of legal judgment is usually not only using a single method, but involves the intentional, unintentional and comprehensive application of many methods. Reflection balance represents a collection of many concrete methods.