转型司法的多重困境与能动走向

转型司法在规范法学视野下出现了难以克服的困境。社会的变迁造成了司法目标的多元,司法不仅追求法律效果,还需要满足社会效果。司法的职业化与民主化在理论界与司法实务过程中不断地争论与纠缠;二元分化的社会又将规范的缝隙再次放大。从自治型法治的视角,克制的司法似乎难以满足现实的需要;平复社会矛盾,能动的司法有更大的发挥空间。因此,法官需要超越传统规范法学的司法视野,建立更广泛的与社会交流的渠道,实现协商性司法与和谐司法。

Multiple Difficulties and Active Trend of Transitional Justice

Transitional justice is difficult to overcome the plight of justice in the specifications from legal perspective.Social change has resulted in multiple targets of justice.The judiciary is not only the pursuit of legal effect,but also needs to meet the social effects.Professionalization and democratization of the judicial process of the theory of community and judicial practice have been in constant controversy and entanglement.Dual polarized society in turn has enlarged standardized gap again.From the perspective of the autonomous rule of law,the restraint of justice seems to be difficult to meet real needs.Resolving social conflicts can bring active judice greater space.Therefore,judges need to go beyond the judicial view of the traditional norms of law to establish a wider range of channels and social exchanges,and to achieve negotiated justice and harmony of justice.