Abstract：Consequentialist adjudication reverses the “discovery of law” and the “justification of adjudication”, taking the predicted possible consequences as the logical initial point of thinking, and selecting laws and forming adjudication conclusions through the prediction and evaluation of consequences. This is quite different from the thinking pattern of legal dogmatics, which emphasizes thinking in terms of the legal rules themselves and takes a completely opposite path in the logic of thought.
According to the strength of the position, there are extreme and moderate consequentialism. Extreme consequentialist thinking takes consequences as the dominant determinant, therefore the normative role of the law itself is dissolved, which makes it undesirable. The moderate consequentialism, incorporates the evaluation and consideration of consequences under the premise respecting and recognizing the binding effect of legal norms on adjudication, thus being reasonable to a certain extent.
The moderate consequentialism can be further subdivided into the consequentialism of the rules-applying and the consequentialism of rules-continuance, both of which are strictly limited to the realm of difficult cases. Whereas the consequentialism of the rules-applying is still regulated by the normative purpose, the consequentialism of rules-continuance goes beyond the normative purpose into the realm of judicial continuation, and is thus subject to harsher restrictions. The consequentialist thinking implies the logic of superficial justification and false justification. This thinking practice is difficult to openly supervise and examine because of its covert manner in which it is often acted.
Considering that consequentialist thinking has the tendency of adjudication beyond the law, it is necessary to transform and limit it in a dogmatic way. Thus, it is necessary to construct restrictive standards at both the formal and substantive levels. At the formal level, consequentialist thinking should be carried out strictly in accordance with the law and should not be arbitrarily freed from the constraints of the law.
At the substantive level, consequentialist thinking should be subjected to the test of reasonableness. The selection, evaluation and consideration of consequences should take into account the general implications for similar cases in the future, as well as the integration of the consideration of consequences at the level of substantive grounds, and should not conflict with the values, the fundamental principles of law and the legal order as a whole. Thus, the consistence of consequentialist adjudication and the position of adjudication according to law could be ensured.
孙海波. 反思以后果为导向的司法裁判思维——实践运作及其谦抑限制[J]. 浙江大学学报(人文社会科学版), 0, (): 1-.
Sun Haibo. Reflection on the Consequence-based Adjudication Thinking： An Exploration into a Modest Standard of Restraint. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.
