当前在疑难案件中,法律的正确适用是司法的核心问题及公众关注的焦点。但由于“法律观”的差别,使得疑难案件的法律适用存在诸多问题。从学术史及方法论角度看,学者们处理疑难案件有各种方法,但最终都依赖对“法”的正确认识及案件事实与法律规范之间的关系的澄清。只有在个案事实与规范的融贯中,在实践理性理论框架内,通过类推等方法,发现、鉴别法律规范才能使疑难案件得以恰当处理。 At present, in difficult cases, the correct application of law is the core issue of the judiciary and the focus of public attention. However, due to the difference of “legal concept”, many problems exist in the legal application of difficult cases. From the perspective of academic history and methodology, scholars have various ways to deal with difficult cases, but ultimately rely on the correct understanding of “law ” and the clarification of the relationship between the facts of the case and legal norms. Only in the cohesion of the facts and norms of the case, within the framework of practical rationality and by analogy, the identification and identification of legal norms can make the handling of difficult cases proper.