The Use Of Common Sense By Judges In The Administration Of Justice And Its Regulation

Common sense is regarded as a general truth,which is both objective and subjective at the same time.It is also universal and empirical.The relationship between common sense and law is very close.The rich connotation and extension of common sense make it one of the important bases for judges in judicial judgment.Common sense also has different expressions in the judicial field.The essence of common sense and rule of thumb is common sense,which has played an important role in the judicial process.The jurisprudence closely related to it is the distillation and sublimation of common sense.Common sense can be divided by type into the most general common sense,common sense in the professional field and personal subjective cognition.The definition and classification of common sense related concepts provide a theoretical basis for the following research.The concept of common sense is often introduced into judicial judgment,and judges are free to bring common sense into case judgment through free psychological evidence.The specific reasons for common sense entering the judicial system are mainly due to the loopholes in some laws,the difficulties in finding facts in cases,and the widespread concern of the public caused by some hot cases.Common sense can be properly introduced into the judgment process to remedy the situation where there is no applicable law,help the judge to fill legal loopholes,fix the chain of evidence,promote logical reasoning and fact determination,help the judge to reason,realize the unification of legal effect and social effect,and let the public feel the fairness and justice of the judiciary.There are also some risks in the process of the introduction of common sense into judicial judgment.The dual role of judges makes it inevitable for judges to be influenced by personal subjective cognition in judicial cognition,resulting in judicial cognitive bias.The improper introduction of common sense in the case and the neglect of the role of logical reasoning will lead to the judicial judgment lack of logical persuasion;Abuse of common sense will lead to the dispute between judicial professionalization and judicial common sense,which will alienate judicial professionalism and affect judicial specialization and judicial authority.The excessive application of common sense will also lead to intensified criticism of universal moralization.The public will judge judicial cases according to moral standards and replace legal evaluation with moral evaluation.Then the role and status of legal provisions will be degraded and the risk of legal nihilism will arise.In view of the above risks,the application of common sense by judges should be strictly regulated to prevent the abuse of common sense and judicial arbitrariness.Firstly,the construction of the system should be carried out,including the regulation subject,content and procedure.At the same time,the relationship between experience and logic should be balanced.In the judicial process,the relationship between logic and experience should be properly handled,that is,following common sense and conforming to legal logic.As the subject of applying common sense,judges should constantly improve their professional ability and professional ability to accurately apply common sense.In the process of applying common sense,it is also necessary to prevent excessive moralization,to prevent moral offside laws,to correct the criticism of universal moralization,to promote the integration of rationality and emotion,to give consideration to reason and jurisprudence,and to enhance the public's recognition of judicial decisions by strengthening the reasoning of judgment.