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司法裁判如何同时满足裁判的自洽性和合理的可接受性,是哈贝马斯提出的关于司法正当性的问题意识。基于哈氏之理论阐发,可以发现着眼于提高裁判的可接受性是提升司法公信力问题解决之突破口,即运用沟通理性作为外在论证来强化裁判之正当性。欧陆实践哲学的复兴背景下,沟通理性作为法学方法论也日益成为显学并作用于司法实践。基于五个不同规模的司法沟通领域,可以分析出沟通理性的不同的运作特征。就日常司法沟通领域和沟通理性之理想对话环境的对比,可以得出司法沟通领域应有之限度,此限度反而形塑着司法领域的理性沟通。此外,基于司法领域规范性和程序性,确证了其系最可欲的沟通领域之一。
How judicial adjudication meets the self-consistency and reasonable acceptability of referees at the same time is the issue consciousness raised by Habermas about the legitimacy of judicature. Based on the analysis of Hastell’s theory, we can find that the focus of improving the acceptability of referees is to solve the problem of enhancing the credibility of the judiciary, that is, to use communicative rationality as an extrinsic argument to strengthen the legitimacy of referees. Under the background of the rejuvenation of European practical philosophy, communicative rationality is increasingly becoming a school of learning and acting on judicial practice as a legal methodology. Based on five areas of judicial communication of different sizes, different operational characteristics of communication rationality can be analyzed. On the contrast between the field of daily judicial communication and the ideal dialogue environment of communication rationality, we can draw the limits that should be given in the field of judicial communication, which, on the contrary, shapes the rational communication in the judicial field. In addition, based on the normative and procedural aspects of the judiciary, it is confirmed that it is one of the most desirable areas of communication.