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1、基于“态度”的司法决策基金项目教育部新世纪优秀人才支持计划(NCET130512)；国家社会科学基金项目(10CFX033) 作 者简介1陈林林，男，浙江大学光华法学院教授，博士生导师，主要 从事法理学、司法制度与裁判方法研究；2杨桦，女，哈佛大学法 学院硕士研究生，主要从事法学理论研究。摘要对司法行为的经验研究表明，疑难案件中的司法决策取决于法官的“态度”， 即法官所持的意识形态或政策偏好。态度理论归纳了主导疑案裁判的 三个决策变量：案件事实、态度，以及事实与态度之间的相互作用。 态度模型作为一种主导型司法决策理论，能解释、预测大多数美国最 高法院和联邦上诉法院的判决。因为受态度测量上的方法
2、论局限，以 及对制度性约束和法官角色认知的忽视，态度模型无法解释相当一部 分案件的判决，也无法解决法官的意识形态漂移问题。在量化法官的 投票行为时，态度理论实际将意识形态界定为法官的党派倾向。这种 非此即彼的量化方式是粗糙的，它将法官描绘成“身披法袍的政客”， 这决定了它是一种片面的司法决策理论。关键词态度；司法决策；意识形态；疑案裁判；法官角色认知Attitudebased Judicial DecisionmakingChenLinlinlYang Hua2(1.Guanghua Law School, ZhejiangUniversity, Hangzhou 310008, China;
3、2. Harvard Law School,Cambridge 02138, USA) Abstract： As a representative of the empirical theory of judicial decisionmaking, the attitudinal model will be helpful in understanding the open area,r in hard cases, as well as answering the questions like how judges act, why are they acting like this, w
4、hat will be the consequence of the action, and what intellectual instruments will be the most appropriate for the analysis of these issues If we use the attitudinal model to predict the decisions of the Supreme Court of the United States, the accuracy is far above average Among the various interpret
5、ativetheories of the decisionmaking of the U.S. Supreme Court, the attitudinal model is dominant at presentThe startingpoint of the attitude theory lies in the standpoint that judicial decisionmaking should not just depend on the application of the right,f legal rules When deciding hard cases, the j
6、udge has a lot of discretion, and the exercises of discretion are directed by the judge0s own views on public policy and rights. Judicial decisionmaking depends on three variants: (1) The facts of a case This is the common core of both the attitudinal model and the legal mode1. However, the differen
7、ces between the two models are that the legal model considers the facts in combination with legalism while the attitudinal model allows the Justices to vote by applying personal policy preference to the fact conditions(2)Attitudes or policy preferences They are the key in the attitudinal mode1.(3) T
8、he interaction between facts andattitudes According to the analysis of the voting results from the Supreme Court and the Federal Courts of Appeals, judges policy preference and votes are positively correlated, that is, the Justice appointed by a Democratic president are likely to vote in favor of th
9、e liberal wing while the Justice appointed by a Republican president will tend to vote for the conservative wing. No matter what method is used to determine the judges political tendency and no matter which rank the judge belongs to in the judicial hierarchy, this presumed political tendency can alw
10、ays be found, and can explain to a large extent the variation of judges votes on political issuesTheattitude theory explains that when deciding hard cases, the judges make their decision not only depending on facts but also on policy preferences Accordingly, the traditional normative decisionmaking
11、theory, or the so-called legal theory,is generally thought to be lacking in explanatory ability and unfalsifiable, and is thus not scientific enough The legal model theory claims that judicial decisionmaking depends on the following variants: the facts of the case, the Constitution and the statutes,
12、 the original intent of the framers of the Constitution, and the precedents However, whether the judge in a judgment tends to be conservative or liberal, or whether he supports the plaintiff or the defendant, he can find support in the Constitution and the statutes, the original intent of the framer
13、s and numerous precedents Therefore, the attitude theorists argue that the legal model would not provide adequate explanations for the final decision and that it is unfalsifiableAs with legal realism,the attitudinal model reveals the irrationality in judicial decisionmaking Nonetheless, the attitudi
14、nal model emphasizes the practice of treating the irrational factors in a rational way and has constructed a judicial decisionmaking theory which can provide explanation and prediction. Yet the attitudinal model is not applicable to a massive number of cases. Besides, the phenomenon of ideological d
15、rift among Justices is also a point difficult to be explained by the attitudinal model. This is because the attitudinal model assumes that when the Justices make decisions, they submit to their policy preferences, and meanwhile the institution and rules relevant to the judicial process also authoriz
16、e them to vote according to their own preferences in the open areas produced in hard cases. Although this theoretical logic has its practical foundation, it also has blind spots, since it only pays attention to the authorization given by the institutions and rules to the Justices but ignores the restrictions that institutions and rules impose on the Justices in their decisionmaking In quantizing the voting
