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司法活动是通过推理而完成的,在某种意义上 甚至可以说,司法活动本身就是推理活动。大陆法 系与英美法系之间存在重大差别,其推理方式也有 所不同。大陆法系实行的是成文法,因而其主导的 推理方式是演绎推理,也就是所谓司法三段论。而 英美法系实行的是判例法,在实行判例法的司法活 动中,其推理又是采用何种方法呢?这是一个不甚 了然的问题。美国学者迈尔文·艾隆·艾森伯格的 《普通法的本质》(张曙光等译,法律出版社2004年 版)一书对我理解这个问题给予了重要的启迪。
Judicial activities are done through reasoning, and it can even be argued in a sense that judicial activities are themselves reasoning activities. There is a big difference between the civil law system and the Anglo-American law system, and its reasoning methods are also different. The civil law system is a statutory law, so its leading reasoning is deductive reasoning, which is the so-called judicial syllogism. However, the Anglo-American law system is case law. In the judicial activities that implement the case law, what is the reasoning behind it? This is a very unknown issue. The book “The Essence of Common Law” (translated by Zhang Shuguang, Law Press, 2004), by American scholar Melvin Ailong Eisenberg, gave me an important inspiration for understanding this issue.