偶在的正义———系统选择视角下的 “ 同案同判”

The Contingent Justice: On “Treating Like Case Alike” from the Perspective of System Choice

摘要:

案例指导制度试图以司法决策的同一性控制来实现形式平等的普遍正义, 也许能够在个案意义上消解 “ 同案不同判” 的偶在悖论。 但这种方法论进路取向于由某个 “ 大主体” 的 “ 我思” 所预设的那个大写的 “ 一”, 追求的是形而上意义的 “ 同一性”, 实际上并不利于系统对环境复杂性保持认知开放。 在法律自我反思视角下, 所谓 “ 同案同判”, 或者说作为经验载体的 “ 遵循先例”, 主要是为了保证具有相关性和开放可能性的 “ 类案/ 先例群” 能够作为法律沟通的生产 “ 要素”, 在 “ 求同/ 辨异” 的系统功能迫令下被有效推送到 “ 找寻衔接” 的过程中, 从而以其差异化的选择可能性为当下提供反思性的选择结构。

Abstract:

Although the concept of _“treating like case alike_” can easily be proven true in static abstract formal logic deduction in the empirical operation of the law as a social functional subsystem，the legal system does not rely on the metaphysical orientation of _“treating like case alike_” as a self-sustaining functional fulcrum， but instead uses the _“legal / illegal _”binary code as a communication strategy to simplify complexity. In the legal communication of dynamic connection of binary codes _“the third value must be excluded._” That is to say in empirical legal communication， the two values of_“different / identical_” do not constitute the true value code of system operation. This is also why，at the level of judicial practice courts can _“legally_” make different judgments in the same case，and judicial decision-making in individual cases also presents an inevitable contingency. The case guidance system tries to realize the universal justice of formal equality by controlling the identity of judicial decision-making， although this may be able to dispel the contingency paradox of _“different judgments for the same case_” in the sense of individual cases. However， this kind of decision-making approach is oriented to the capital _“one_” presupposed by the _“I think_” of a _“big subject_” and pursues the _“identity _” in the metaphysical sense. This is not actually conducive to keeping the system open to the complexity of the environment. From the perspective of legal self- reflection，the so-called _“treating like case alike_” or _“following precedent_” as an experience carrier is mainly to ensure that the _“precedent cases_” with relevance and open possibility can be effectively pushed into the process of _“finding convergence_” as a production _“element_” of legal communication under the compulsion of the system function of _“seeking common ground / distinguishing differences_” ，so as to provide a reflective choice structure for the present with its differentiated choice possibility. In the process of selective information exchange and communication between the system and external environment，the paradigm shift of modern law exhibits a characteristic of moving from a _“normative orientation_” to a _“reflective orientation_” . If we say that under the _“normative orientation _”，as long as we ensure formal equality and universality the law can be recognized by people， then under the_“ reflective orientation _”only when the law is based on a universally recognized value foundation can it put forward normative requirements for people. That is to say in the context of the paradigm shift of modern law the self-legalization of law no longer requires unreflective formal justice but requires legal decision-making to _“find connections and communicate differences_”， reflect in the observation zones of various paradoxes of mutual transfer， such as system / environment center / edge legality / illegality fairness / injustice difference / equality recognize the rationality of differentiated judgments， and make a selective response to the occasional complexity of the external environment that conforms to the imagination of social justice through the choice mechanism of the law itself.