盧埃林法律現實主義解讀

Realistic Interpretation to Llewellyn’s Law

本文主要對美國現實主義法學家盧埃林在20世紀30年代初的現實主義法律思想進行探討，試圖梳理其規則懷疑主義、事實懷疑主義的主張。學者一般將盧埃林歸為規則懷疑主義，弗蘭克歸為事實懷疑主義。本文則認為，盧埃林是兼有“規則懷疑論”和“事實懷疑論”的。盧埃林的規則懷疑主義可分為兩個階段。第一階段體現在《荊棘叢》這本書中。他認為最值得關注的是法院如何解決問題，規則只在預測法院如何解決問題這個層面上具有意義。甚至，他認為規則的預測作用並不大。首先，法官很多時候只是宣稱遵守規則，卻常常避免使用他們不喜歡的規則。法官運用各種工具使得某條規則符合其結論，再把法律規則寫進判決理由，讓人們以為這些規則就是其得出結論的判決理由。其次，法官受到判例的約束並沒有想像中的那麼嚴格，這也導致了規則的預測作用不大。1931年盧埃林在兩篇論文中，系統闡述了其規則懷疑論。這是其規則懷疑主義的第二階段。盧埃林通過闡釋“規則”、“權利”、“利益”這些術語的模糊性，批判了傳統的紙面規則的局限性，並分別從紙面、實踐對權利、利益、救濟進行研究，提倡法理學的研究中心應該是行為，認為法律無非是對法院的判決作出預測，法學研究的目的就在於提高這種預測性，而這最好是通過對行為的研究來實現。盧埃琳的事實懷疑主義在《荊棘叢》中提及，主要體現在他對判例法體系的闡述中。首先，基層法院要通過雙方的陳述瞭解雙方爭議的問題，但最終法院確定的事實只是假定的事實。其次，陪審團決定事實，作為法律門外漢的陪審團，難免作出不當的推論。再次，審判過程中，事實經過了層層過濾，最終得到的假設的事實與原始事實之間距離甚遠。又次，從事實、規則再到判決的邏輯顛倒讓我們無法發現真正的事實。最後，一些法院從自己制定的規則、自己對事實的解釋出發，這也妨礙了他們發現事實。

The main purpose of this paper is to discuss Llewellyn’s Realism Legal thought in the early thirties of last century. In this paper, I try to sort out his Skepticism of Rules and Facts. Someone hold the opinion that Llewellyn belongs to the Skepticism of Rules, while Frank belongs to the Skepticism of Facts. However, in this paper, Llewellyn belongs to both of them. Llewellyn’s Skepticism of Rules can be divided into two phases. The first phase is the book Bushes. In this book, he thought that we should pay more attention to how the court resolved disputes, and the rules only mad sense when they were used to predict the resolution. He even thought that rules didn’t make a good prediction. First of all, judges claimed to follow rules, while they in fact avoided applying the rules they didn’t like. They used some kinds of tools to make a rule consistent with their conclusions and then put the rule into their reason, therefor, people might think that the rule was the very reason of their judgements. Second, judges were bound by precedents, but it was not stringent enough. Llewellyn systematically described his Skepticism of Rules in two papers in 1931. This is the second phase. Through explaining the ambiguity of rule, interest and right, he criticized the limitation of traditional paper rules and studied rule, interest and right from both paper and practice. He advocated that behavior should be the focus of such study. In his opinion, law was nothing but the prediction of the judgment, and the purpose of legal study was to enhance the accuracy of such predictions, which may come true if we focused on behaviors. Llewellyn’s Skepticism of Facts, discussed in the book Bushes, were mainly reflected in his elaborate of Case Law System. First, primary court understood the problem through the mutual statement, therefor, the fact that the court determined was a fake one. Second, because the fact was determined by jury who were laymen of law, it was doomed to make a wrong decision. Third, the fact had been filtered repeatedly in the trial, thus, the fact determined by the court was far away from the true one. Fourth, the logical confusion of fact, rule and judgement led to the impossibility of finding the actual fact. Last but not least, some courts couldn’t find the fact for the starting point was their own rules and explanation of fact.