民意主义要求法官像民众那样思考,要善于体恤民意,因此适用法律必须以民意为标准;法意主义者却主张法官像精英法律人那样思考,视法意如圭臬,因为法治就是法官按照法律进行治理,这就要求法官必须从其价值方面进行选择。笔者认为法官应将法意作为判案的终极依据,但又应审慎地对待民意,惟有如此,才能更好地实现正义,造福民众。 Public opinion requires judges to think like the people and to be sympathetic to public opinions. Therefore, the applicable law must be based on public opinions. The French-Italian advocate that judges should think like elite legal persons, because the rule of law is the judge’s conduct in accordance with the law Governance, which requires judges must choose from its value. The author thinks that judges should take French law as the ultimate basis for judging cases, but they should also treat public opinion with caution. Only in this way can justice be realized and the people be benefited.