The Judge Thinking And Virtue In Solving Hard Cases

Hard cases have always been an important topic in the study of philosophy and jurisprudence.Many scholars put forward many important judgments on hard cases.Among them,Hart believes that one of the important reasons for the existence of hard cases is that the law has an open structure.When the case fall to the edge of the rules,hard cases will inevitably arise.When Dworkin discusses hard cases,he proposes that the legal concept or legal practice itself is an interpretive concept.If people want to properly solve hard cases,people must interpret the law.And he also invents a Hercules-style "ideal judge" who would better to solve the hard cases.In order to solve the hard cases,Posner also puts forward his own judgments describing what factors will affect the judges' actual judgments of cases,and summarizing a series of ideal characters that judges should have.The author will follow the research of predecessors and write this thesis.The article is mainly divided into three chapters.The first chapter mainly delimits the general scope for the hard cases,the author thinks judgment standards of hard cases are mainly divided into the formal standards and substantive standards.Formal standards mainly relates to the legal language,but the substantive standards starts with legal interpretation.The second chapter mainly discusses the legal thinking that judges should have when solving hard cases.According to formal rule of law in China is not yet stable,and its essential rule of law is deeply ingrained,for legalistic thinking and consequence-oriented thinking,two types of legal thinking appearing in academia,the author believes that people should adhere to legalism first and appropriately add value judgments.The third chapter mainly discusses what kind of virtue a judge should have,in order to properly use legal thinking and legally and reasonably solve hard cases.Hercules-style judges or ideal judges do not exist in real life,a qualified judge is the goal that should be pursued in judicial practice.Qualified judges should not only have excellent professional knowledge,but also have common sense brought by life experience and the spirit and belief given by the rule of law society.Therefore,it is not easy to train qualified judges,which needs social system and education guarantee.