谢晖：《法律哲学（法律的病理与医理）》出版
2009-05-18 09:18:24 作者：佚 名 来源：本站首发 浏览次数：0 网友评论 0 条
该书由湖南人民出版社2009年3月出版，是作者《法律哲学》三部曲中的第三部。
目 录
序言
三、规范分析方法：一种合法/非法、运行/效果、权利/义务分析方法... 10
典型案例（三）河鲈科淡水小鱼案：通过论证释明模糊... 86
典型案例（四）李慧娟法官判决种子纠纷案：法官效力识别的边界？... 109
典型案例（五）泸州二奶遗赠案：公序良俗的价值优先... 132
六、事实替代、（法官）规范构建与法律冲突的消解... 151
典型案例(七) 中国网游第一案:虚拟财产也是财产... 178
典型案例（八）里格斯诉帕尔默案：从公共政策中发现法律... 200
典型案例（九）米兰达诉亚利桑那州：通过判例续造宪法权利... 222
Contents
Preface
Introduction: Normative Analytical Method
I. Why has there never been Methodology in Chinese Jurisprudence?
II. Three Positive Methods
III. Normative Analytical Method: An Analytical Method Based on the Dichotomy of Lawful/Unlawful, Operation/Effect, Right/Duty
IV. General Subject Matter of Normative Analytical Method: Institutional Facts
Book One: Legal Ambiguity and Its Remedies
Introduction First Focus of Law: Ambiguity
Chapter One Legal Interpretation and Construction of Legal Ambiguity
I. Legal Interpretation, Common Problems and Construction of Legal Ambiguity
II. Legal Interpretation, Literal Interpretation and Construction of Legal Ambiguity
III. Legal Interpretation, Narrow Interpretation and Construction of Legal Ambiguity
IV. Legal Interpretation, Broad Interpretation and Construction of Legal Ambiguity
V. Legal Interpretation, Reference to Legislative History and Construction of Legal Ambiguity
VI. Legal Interpretation, Comparative Analysis and Construction of Legal Ambiguity
VII. Legal Interpretation, Statement of Policy (System) and Construction of Legal Ambiguity
Typical Case (I) State v. Xuting: Broad Interpretation or Conviction by Analogy?
Chapter Two Legal Reasoning and Construction of Legal Ambiguity
I. Case facts Matching Legal Provisions Or Not
II. Legal Reasoning and Sphere Beyond Legal Interpretation
III. Deductive Reasoning, Major Premise and Ambiguity
IV. Inductive Reasoning, Petty Premise and Ambiguity
V. Dialectical Reasoning, Substantive Choice and Ambiguity
VI. Analogical Reasoning, Stare Decisis and Ambiguity
Typical Case (II) Pengyu Case: Determination of Petty Premise by Reasoning
Chapter Three Legal Argumentation and Legal Ambiguity
I. Diversity of Points of Views, Complex Reasoning and Resolution by Argumentation
II. Rational Argument, Legal Argumentation and Ambiguity
III. Interplay of Actors, Competition of Reasoning and Ambiguity
IV. Hard cases, Schemes of Resolution and Ambiguity
V. Substantive Reasonability, Acceptability and Ambiguity
VI. Debate in Negotiation, Rational Compromise and Ambiguity
Typical Case (III) The Small Fresh Water Fish Case: Construction of Legal Ambiguity Through Argumentation
Book Two: Conflicts of Law and Their Remedies
Introduction Second Focus of Law: Conflicts of Law
Chapter Four Identification of Effect, and Reconciliation of Conflicts of Law
I. Identification of Effect, Preemption of Principle and Reconciliation of Conflicts of Law
II. Identification of Effect, Preemption of Higher Law and Reconciliation of Conflicts of Law
III. Identification of Effect, Preemption of Specific Law and Reconciliation of Conflicts of Law
IV. Identification of Effect, Preemption of New Law and Reconciliation of Conflicts of Law
V. Identification of Effect, Preemption of Procedure Law and Reconciliation of Conflicts of Law
VI. Identification of Effect, Preemption of International Law and Reconciliation of Conflicts of Law
Typical Case (IV) The Case Involving a Dispute over the Seeds Ruled by Judge Li Huijuan: Limits of Judge’s Identification of Effect?
Chapter Five Interests Evaluation and Reconciliation of Conflicts of Law
I. Interests Evaluation, Conflict of Values and Reconciliation of Conflicts of Law
II. Interests Evaluation, Conflict of Interests and Reconciliation of Conflicts of Law
III. Interests Evaluation, Status of Actors and Reconciliation of Conflicts of Law
IV. Interests Evaluation, Social Norms and Reconciliation of Conflicts of Law
V. Interests Evaluation, Public Opinion and Reconciliation of Conflicts of Law
VI. Interests Evaluation, Social Situation and Reconciliation of Conflicts of Law
Typical Case (V) The case of bequeath to Mistress in Luzhou: Preemption of Public Values
Chapter Six Facts Substitution and Reconciliation of Conflicts of Law
I. Facts Substitution, Governing Impossibility and Reconciliation of Conflicts of Law
II. Facts Substitution, Essence of Affairs and Reconciliation of Conflicts of Law
III. Facts Substitution, Established Rules and Reconciliation of Conflicts of Law
IV. Facts Substitution, Negotiation between Plaintiff and Defendant and Reconciliation of Conflicts of Law
V. Facts Substitution, Consideration on Public Opinion and Reconciliation of Conflicts of Law
VI. Facts Substitution, Rule Formulation and Reconciliation of Conflicts of Law
Typical Case (VI) The Case of Adoption: Substitution of Custom for Contract
Book Three: Legal Gaps and Their Filling
Introduction: Third Focus of Law: Legal Gaps
Chapter Seven Application of Law by Analogy and Filling of Legal Gaps
I. Legal Gaps, Application by Analogy and Filling of Gaps
II. Application by Analogy, Facts Finding and Filling of Gaps
III. Application by Analogy, Priority of Effects and Filling of Gaps
IV. Application by Analogy, Legal Restriction and Filling of Gaps
V. Application by Analogy, Acceptability and Filling of Gaps
VI. Application by Analogy, Following Precedents and Filling of Gaps
Typical Case (VII) First Case Involving Internet Games: Fictional Property Also Property
VII. Chapter Eight Finding of Law and Filling of Legal Gaps
I. Finding of Law, Impossibility of Law and Filling of Gaps
II. Finding of Law, Rule for Specific Case and Filling of Gaps
III. Finding of Law, Practice and Beliefs and Filling of Gaps
IV. Finding of Law, Social Policy and Filling of Gaps
V. Finding of Law, Legal Doctrines and Filling of Gaps
VI. Finding of Law, Commonsense and Filling of Gaps
Typical Case (VIII) Riggs v. Palmer: Finding Law in public Policy
Chapter Nine Lawmaking and Filling of Legal Gaps
I. Lawmaking, Legal Fiction and Filling of Gaps
II. Lawmaking, Lawmaking by Judge and Filling of Gaps
III. Lawmaking, and Filling of Gaps
IV. Lawmaking, Moral Orientation and Filling of Gaps
V. Lawmaking, Political Orientation and Filling of Gaps
VI. Lawmaking, Competence of Judge and Filling of Gaps
Typical Case (IX) Miranda v. Arizona: A New Constitutional Right Established by Case Law
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