【作者】 兰照；

【导师】 杜宴林；

【作者基本信息】 吉林大学 ， 法学理论， 2013， 博士

【摘要】 实用主义作为美国土生土长的哲学流派，其产生、发展和传播都有着深厚的社会文化背景。虽然实用主义并不是美国唯一的思想流派，却是最为美国人所接受的哲学思想,大多数的美国人都倾向于把实用主义当做最适合他们、对他们生活最有影响的哲学思想。实用主义已渗透到美国社会的各个领域，对美国的法律理论和司法实践也有着重要的影响。将实用主义的核心理念与思维方法运用到司法的具体运作工程中，在美国的司法领域有很多可圈可点之处，实用主义范式下的司法理念为司法裁判提供了一种注重实践和经验的审判路径，这在一定程度上缓解了法官严格适法的压力。实用主义审判理念要求法官以判决可能导致的结果为依据而非绝对按照制定法规则作为裁判内容做出的依据。这在很大程度上减少了判决的修辞，增强了判决的可接受性。本文以司法实用主义理念为研究基点，分别勾勒出美国司法实用主义和当代中国司法实用主义的图景，指出这两者之间存在的关联，以及这两种司法实用主义之间的显著的差异，及其产生这种差异的原因所在。在对与实用主义相似的一些理论进行分析的基础上，指出实用主义的特殊价值所在，然后着重分析当代中国司法实用主义理念在具体司法裁判中存在的价值以及如何有效地发挥司法实用主义的功能，分析司法实用主义的中国特色，最后在文章中指出当代中国司法实用主义存在的一些显性的问题，对司法实用主义理念指导下的司法功能予以反思。本文认为当代中国的司法实用主义虽然与美国的司法实用主义有着诸多的联系，比如二者在理论层面就存在有共同之处，但在具体的操作运用中，当代中国的司法实用主义更侧重于社会效果尤其是政策的导向，这与美国以经验和过程为导向的司法实用主义有着显著区别。因此，在研究当代中国司法实用主义的过程中，应该以当代中国的司法环境和国情为依托，跳出美国司法实用主义的范畴来审视具有当代中国特色的司法实用主义。更多还原

【Abstract】 Pragmatism as a native philosophy, its emergence, development anddissemination has a profound social and cultural background. Although pragmatism isnot the only American school of thought, philosophy is accepted by most Americans,but most Americans pragmatism as the most suitable for them, the life of the mostinfluential philosophical thought to them. Pragmatism has penetrated into every aspectof American society. Pragmatism in legal theory and judicial practice in the UnitedStates has an important influence. Legal pragmatism provides a practical concept forjudicial judgment and experience judgment of the path. This, to some extent make upfor the defects of traditional judicial judgment of excessive dependence on form, alsoreduce the stress of the judge strict laws. Pragmatic concept of trial asked a judge tosentence on the basis of the results may lead to rather than absolute in accordancewith the regulations formulated by the decide the content of the referee. To a greatextent reduced the sentence rhetoric, to enhance the acceptability judgment. Based onlegal pragmatism philosophy as the research basis points, respectively, the outline ofthe American legal pragmatism and judicial pragmatic vision of contemporary China,points out the two existing differences and inner reasons for these differences, andanalyzes some similar to pragmatism theory, points out that the special pragmaticvalue, and then focus on analysis of the contemporary Chinese legal pragmatism ideasexist in the concrete judicial judgment of value, and how to effectively develop thefunction of legal pragmatism, analysis of legal pragmatism with Chinesecharacteristics, and finally in the article points out that the contemporary Chineselegal pragmatism and some dominant problems in judicatory pragmatism philosophyunder the guidance of the judicial function. This paper argues that the contemporaryChinese legal pragmatism is has many connections with the American legalpragmatism, have in common in theoretical level, but in the concrete operation use,contemporary Chinese legal pragmatism focuses more on the social effect of the guide, with the experience and process oriented legal pragmatism is has a significantdifference. Therefore, in the process of research on contemporary Chinese legalpragmatism, should be based on contemporary China’s judicial environment andconditions, jump out the category of the American legal pragmatism, to look at legalpragmatism with contemporary Chinese characteristics.There are eight chapters in this dissertation Chapter1is the introduction, andChapter7is the conclusion. Other five chapters are the followings:Chapter2discusses the judicial situation of pragmatism in the American legalpragmatism and the contemporary Chinese legal pragmatism, respectively do adetailed picture of the outline, the pragmatism that Outlines the general situation ofthe two, using comparative analysis method to extract the essence of these two kindsof pragmatic differences, for the article at the back part of the detailing of thecontemporary Chinese legal pragmatism characteristics to do a good job offoreshadowing. Because in my opinion, the American legal pragmatism and thecontemporary Chinese legal pragmatism, although in the existing translationterminology, expressed in the same way, but there are differences in nature, theAmerican legal pragmatism, focusing on the process and experience of elegant,contemporary China’s judicial pragmatism more focus on the effect of the measure,this is two different judicial path, while using the same kind of the guidance of theconcept, but due to differences in national conditions, the legal system, legalenvironment, will inevitably appear the homogeneity of different results. Therefore,the author thinks that the study of current Chinese legal pragmatism in the process,must be selected "pragmatism" and "pragmatism", clear two pragmatism has justappeared on the agree, exists in use process is separate, not general think utilitarianpragmatism in contemporary China and the United States is the same.Chapter3discusses the pragmatism in theory to make a clear definition ofpragmatism is the earliest philosophical concepts, as the legal subject graduallyperfect, the research on legal pragmatism and Russia and raises legal pragmatismgradually began as a concept to guide the operation of the judicial process.Pragmatism theory is on the basis of widely absorbing other theory graduallydeveloped, therefore, on the philosophy of pragmatism and utilitarianism, realism,consequences and postmodernism have close connection and similarities, so it issometimes hard to clear to draw clear boundaries between these theories. Butpragmatism also has its own characteristics and other what theory does not have the discipline superiority, so it is necessary to the theory of pragmatism and other similarcomparative analysis, so as to achieve more explicit recognition of pragmaticcharacteristics. And, of course, this article also impossible can be implementedthrough the analysis of the definition of similarity theory, this is not realistic, but alsouseless, because no one theory may be isolated, must link and other theories. Thisarticle is trying to through the comparison and analysis of the theory in this chapter,pointed out that judicial pragmatic value and legitimacy of legal pragmatism can, as akind of concept to guide the judicial referee is has its unique value and legitimacy.Chapter5discusses the practical judicial ideas of some basic principles, thereferee skills and specific paths in the judicial process analysis are summarized.Pragmatic judicial trial principle, as the paper notes, with consistency in nature. Basedon the overview of posner about legal pragmatism on the basis of the principle ofcombining with China’s specific legal situation, choose the three most can representthe principle of legal pragmatism skill, the interests of the measure principle, theprinciple of reasonable, consultative judicial principle is analyzed. Will, of course, Ialso know that pragmatism all oriented generalization to the principle of justice, isalso unlikely, this also with the pragmatic analysis of light conclusion runs counter tothe idea. After analyzed the judicial pragmatic principle, the article then specificreferees for judicial pragmatic skills and judicial path in the process of doing a briefelaboration.Chapter6discusses on the basis of above analysis, the contemporary judicialpragmatic were briefly reviewed in this description, with Chinese characteristics incontemporary judicial pragmatism philosophy under the guidance of China’s judicialreferee model gives a detailed analysis, and then to contemporary Chinese legalpragmatism to make a global, especially it should be pointed out that thecontemporary Chinese legal pragmatism existing problems of some dominant, toexplore the pragmatism of judicature in our country is in the true sense of the judicialpragmatism, contemporary China’s judicial judicial pragmatic difference betweenpragmatism and the United States, and why can produce such a big difference. Andpoints out that although we contemporary judicial pragmatism is not perfect, there aremany problems, but the pragmatism of judicial philosophy did to a great extent, tomaintain the social stability of our country, also to achieve a higher degree of judicialjustice in the future laid a solid foundation. Under the guidance of the socialistconcept of rule of law, give full play to the pragmatism of judicial philosophy will be more help towards social justice response type, because, in contemporary China,judicial needed to do is to face inherent in the legal tradition and creative use ofpositive factors, efforts through its own perfect, in the society under the backgroundof highly anticipated, using judicial judgment skills that are in accordance with thetime requirements, to win the recognition and respect of society, realize the judicialsafeguard social order and promote social harmony.更多还原