The Conflict And Connection Between Legalism And Consequentialism In Judicature

The judicial policy of the unity of legal effect and social effect requires judges to consider not only the certainty of law but also various consequences outside the law in the process of adjudicating a case,which leads to the conflict between two judicial methods,namely,Legalism and consequentialism.Both Legalism and consequentialism have unavoidable defects in dealing with difficult cases.Legalism trial is based on the existence of unique legal interpretation conclusion and value consensus.As a result oriented legal thinking,consequentialism needs to be criticized for its predictability,feasibility and desirability.This requires that in the judicial process,in the specific scope of the case,the combination of the two.Judicial trial is a process of communication and communication.How to apply the law has both internal consistency and external reasonable argumentation,and at the same time,to ensure the certainty of law and the correctness of law application,Habermas thinks that this is the rational problem of justice.The existing realism,positivism,hermeneutics and Dworkin’s consistent legal thoughts have not been able to solve this problem comprehensively.Habermas introduced communicative rationality to interpret the judicial process,guided the judge’s monologue to the negotiation,and found a reasonable and acceptable judicial space in the negotiation.At the same time,he used communication rationality as the source of judgment credibility,supplemented by highly ideal Negotiation procedure is the guarantee.Negotiation rationality is indeed an ideal state,which contains a great Utopian color.It requires unlimited time,and the negotiation space without any interest influence cannot be realized in the judicial process.However,this does not mean that legal negotiation has no value.Communication is one of the most desirable ways to realize existence for individual cases.As a kind of value perspective,we can criticize the existing judicial procedure through the ideal paradigm,make direction guidance for the future judicial reform,and find the limit of judicial communication.