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以分离命题作为核心主张的法律实证主义理论,并非是针对法官审判实践的法律方法论,但是,分离命题面临着法官在审判中对法律进行道德解读的质疑。法律实证主义理论肯定了法官的自由裁量权,以区别于传统僵化的法律形式主义。法律实证主义认为自由裁量主要是由于语言的空缺结构和立法者的局限而产生。实践中法官通常遵循的论证模式对自由裁量构成一定的限制,但法官仍有广泛的裁量自由。自由裁量与法律实证主义的分离命题并不矛盾,在特定的法律体系中甚至是分离命题的必然结论和支持。
The theory of legal positivism with the proposition of separation as its core is not a legal methodology that focuses on the trial of judges. However, the separation proposition is facing the question of judges’ moral interpretation of law during the trial. Legal positivism affirms the judge’s discretion to distinguish it from the traditional rigid legal formalism. Legal positivism holds that discretion is mainly due to the vacancy structure of language and the limitations of legislators. In practice, the mode of argument that judges usually follow poses certain restrictions on discretion, but judges still have a wide range of discretion. Discretion and the separation of legal positivism propositions are not contradictory in a particular legal system and even the inevitable conclusion and support of the thesis.