[author]Chen Liang, Che
[content]
Author* Chen Liang
PhD student in Koguan School of Law, Shanghai Jiaotong University
Communication author* Cheng Jinhua
Professor of Koguan School of Law, Shanghai Jiaotong University, Deputy Dean of China Institute for Socia-Legal Studies
Abstract: The civil judgment of the “Jiang Ge Case” reveals the possibility of “importing moral judgement into the judicial decision”, but the method of importation used still needs to be examined. From a practical standpoint, the existing judicial practice mainly relies on the “translation” method to achieve moral importation. That is, when a judge realizes that the legal judgment in a case conflicts with moral judgment, he or she will follow the direction of moral judgment to rediscover the legal judgment and justify it, thus making moral judgment indirectly accepted by the public. However, “moral translation” possesses an implicit nature, and judicial decisions made it fail to explicitly address the essential questions of “which moral judgment is involved” and “whether moral judgment is necessary”, thus easily increasing the risk of judicial arbitrariness. For this reason, it is imperative to fully externalize the process of “moral translation” and establish a public platform for the interpretation of judicial decisions made through translation. Therefore, from a normative standpoint, the ideal judicial decision should be based on an argumentation approach to achieve moral importation. On one hand, there is a need for “generative argumentation” in social contexts, transforming a judge’s personal moral considerations into socially recognized moral consensus. On the other hand, there is a need for “judicialized argumentation” in the courtroom, formally embedding social moral consensus into legal judgment at the judicial level. In this sense, procedural rules based on deliberation serve as institutionalized mechanisms for “importing moral judgement into the judicial decision” enhancing the reasonable acceptability of moral judgments in the judicial arena and providing an opportunity to reconcile the normative and social impacts of each case.
Keywords: judicial decision-making; law and morality; legal method; legal argumentation; legal procedure
Introduction
In the civil lawsuit of Jiang Ge Case, the court's decision revealed the practical significance of "the import of moral introduction". After the case, in addition to the legal disputes of the case itself, the focus of attention of all parties cares about the moral propositions behind the case. Due to the death of Jiang Ge's assassination outside the door, Liu Xin (Liu Nuanxi) first entered the room and locked the door was considered to be a "injustice" of a companion in crisis, so evaluation becomes the focus and difficulty of the referee in the case. Therefore, in the process of trial of the case, the court of first instance started with the moral concept of "helping the crisis and help", determining that Liu Xin's behavior failed to fulfill its legal security obligations, thereby judging that it should bear the liability of infringing the right to life of Jiang Ge. Although Liu Xin refused to serve the first instance judgment after the incident, the court in the second instance continued the former legal judgment on security guarantee obligations, and believed that the judgment could reflect the moral orientation of "friendship and mutual assistance", thereby making the final nature of rejection of appeals and maintaining the original judgment referee. It is not difficult to find that there is a type of common characteristics in the logic of the above two trials, that is, the court's legal judgment on the case has obvious moral judgment meaning. It can be regarded as one of the "imports" of moral evaluation in the judicial referee. It is under the influence of such "moral introduction of justice" that the judicial judgment of Jiang Ge Case can respond to moral concerns, and be highly recognized by the public.
On the extension line of the Jiang Ge Case judgement , legal researchers have issued academic questions about "how to introduce morality into the judiciary". The reason why the two trial judgments of the Jiang Ge Case has received high support from the public is mainly due to its handling of the relationship between moral judgment and judicial adjudication, but the coordination of the relationship between the two is not easy. On one hand, there are obvious differences between the nature of judicial adjudication and moral judgment. Although there may be inevitable or accidental overlap in their contents, the two are still attributed to two different types of normative systems in form, that is, they operate according to the symbols of "legal/ illegal" and "moral/ unmoral" respectively. On the other hand, the judiciary is also cautious in its approach to moral judgement. Because moral norms are not the source of legal form in China, the moral judgements formed according to them have no effect in the legal sense, so they are often difficult to be directly reflected in judicial decisions. In this sense, moral judgement can not be directly involved in the judicial decision in a rigid form, but can only be indirectly embedded in the judicial process in a flexible way, and this requires the use of certain methods in order to realize.
For this reason, relevant studies have attempted to deconstruct the methods used in the process of introducing morality into the judicial process of Jiang Ge Case from the materials of the judgement of the case. Currently, there are two main viewpoints that have been formed: one is the actuality viewpoint put forward by Sang Benqian, who believes that the two judgements mainly adopted the method of "moral reasoning", and thus advocates that morality can be introduced into the judiciary by resorting to the moral principle under the value-oriented approach. The other is the contingent point of view put forward by Wang Jing and Shu Guoying, who believe that the two judgements need to adopt the method of "legal interpretation", and point out that morality into the judiciary should not exceed the doctrinal space of legal norms. Obviously, the above two types of viewpoints are in opposition to each other, and if we look at the other side from the perspective of either side, we will find that their positions are biased. Among them, the actual view of moral reasoning is quite free, if the judicial decision can be made on the basis of unwritten moral principles, the nature of the decision will be alienated into a highly abstract "moral judgement", which will inevitably run counter to the requirements of the stability of the law. In contrast, the legal interpretation of the contingent point of view is a little narrow, if the basis of judicial decisions can only be limited to the legal doctrine, the results of the decision can be made only on the basis of legal judgement, then the introduction of moral judgement will not have any significance. In this sense, it is necessary for the current study to analyse and compromise between the above two views, or to seek a transcendent "third path" in addition to the two views, so as to provide support for the process of introducing moral judgement into the judiciary.
Based on the analysis above, this paper is a methodological review of "introducing morality into justice". The reason why the two types of methodology above are in opposition to each other is because of their different attitudes towards the judgement of Jiang Ge Case. The actual view of moral reasoning is to regard the methodology used in the judgement as a correct model and to generalize it, while the contingent view of legal interpretation is to criticize the methodology used in the judgement from the external point of view. It should be noted that these two positions are somewhat extreme. Although the two judgements in Jiang Ge Case cannot reveal the absolutely correct method of introducing morality into justice, they can still provide the necessary methodological experience for the introduction of morality into justice, and it is necessary for relevant research to recognize this descriptive significance before proceeding to normative construction. Therefore, in contrast to the purely actual or contingent logic of the existing studies, this paper will be based on the coherent approach of "from the actual to the contingent". Firstly, the analysis of the actual level will be rooted in the judgement materials of Jiang Ge Case, and while sorting out the characteristics of the method of introducing morality into justice, we will reflect on the shortcomings of the method and the judicial risks it may cause. Afterwards, the discussion on the contingency level will go beyond the framework of Jiang Ge Case, and seek to optimize the approach to overcome the risks associated with the introduction of morality into justice from the perspective of the general requirements. On this basis, this paper finally hopes to construct a class of ideal methods for the introduction of morality into justice, and to provide reference for future judicial practice by configuring the procedural rules for the application of this method.
In dealing with cases involving ethical issues, current judicial practice mainly employs a strategic method of "moral translation". The term "moral translation" is not a common concept in legal methodology, but is used in this paper as a way to refer to the introduction of morality into justice, mainly due to the consideration of relevant practical characteristics at present. Specifically, when the judicial process of a case requires the introduction of morality, the judge's usual strategy is to find a possible legal basis for the moral judgement first, and then elaborate the content of the moral judgment by relying on legal discourse, which is similar to the translation mechanism between different languages. It can be argued that the two verdicts in Jiang Ge Case are good examples of the use of moral translation. Although it is strictly expressed in the form of "legalese", the essence of moral judgment is always contained in the core. In this sense, the key to moral translation is to transform moral judgements into legal judgements under judicial decisions, which is not a one-step process. According to the two-level view of "discovery-evidence" in the judicial process, the realization of moral translation includes at least two elements: First, the judge needs to complete the translation at the thinking level in the judicial discovery process, and preliminarily transform a moral judgment into a legal judgment, so that it has access to the basic conditions of judicial decision. Secondly, the judge needs to carry out the translation of action at the level of judicial evidence, and realize the proof of moral judgement through the proof of legal judgement, so as to formally embed the moral judgement into the judicial decision. Accordingly, this paper will focus on this dichotomous logic to analyse the moral translation method revealed by Jiang Ge Case.
1.1 Translational Thinking at the Judicial Discovery Level
The description of the "moral translation" method need to get start from the judge's judicial discovery of thinking analysis, that is, only in the first thinking level can we form a general understanding of the translation, and then only in the level of action can we realize the ethical import through the translation of the moral import. Of course, the observation and analysis of moral translation thinking is not easy. On the one hand, the judge's thinking process itself is not publicly visible, and the detailed logic of such translation can only be known by the judge personally, while it is difficult for onlookers to form a completely clear understanding. On the other hand, the way of thinking of different judges also varies, and there is no highly standardized formula for dealing with the issue of moral translation. Because of this, the current methodological views on the introduction of morality into the judiciary often ignore the analysis of this kind of thinking, focusing only on the judicial evidence level of the "visible" statement of the verdict, but not examining the judicial discovery level of the "invisible" tide of thinking, resulting in the description of the methodological construction of the As a result, their description of the resulting methodological construction is inevitably one-sided. However, it should be pointed out that, although the judge's moral translation thinking does not have an absolutely stable law, but it is not possible to detach from the human rationality and judicial rationality of the normative scope, and signs of thinking are bound to be reflected to some extent in the views of the judges. For this reason, this paper is based on the basic position of "normal human methodology", through the judgement in two trials in Jiang Ge Case for reverse deconstruction, the judge's moral translation of the thinking process is reduced to the following two steps.
First, the judge recognizes that the legal judgment in the case may be in conflict with the moral judgment. Generally speaking, the judge's legal intuition is always the starting point of judicial thinking, which will provide possible legal judgments for individual cases under the influence of the intuition, and ultimately determine the judgment results based on the direction of the legal judgment. But in cases involving moral factors, the judge's judicial thinking is not only affected by the legal intuition, it will also be based on the facts of the case to form a moral intuition, which will produce a moral judgment alongside the legal judgment. In fact, the judge in the case of legal judgment and moral judgment may not have completely consistent direction, the two are very likely to present mutual conflict or competition, and Jiang Ge Case is facing the situation is exactly the same. On the one hand, if only from the perspective of legal intuition, the judge may tend to the legal judgment that Liu Xin does not have to bear the responsibility for the damage to Jiang Ge's right to life, that is, to admit that his prior entry and locking of the door was "in accordance with the law".. It is not difficult to understand, the judge's legal intuition is formed in the long-term judicial practice of empirical response, when the need for a particular case to make legal judgments, this kind of intuition will usually go back to the past about the norms and facts of the interpretation of experience, and will be used as the current norms and facts of the interpretation of the guidelines. According to this logic, considering Jiang Ge Case involving Chen Shifeng murder and Jiang Ge victimization and other factors, the judge's factual knowledge of Liu Xin's behavior could easily fall into the category of "harming the rights and interests of others in order to avoid danger"., the corresponding legal norms are also naturally pointing to the civil law on the "Emergency risk avoidance". At this time, The judge may find that Liu Xin only has to pay for the portion of Jiang Ge's right to life damage that exceeds the limits of avoidance rather than all of it. But on the other hand, if from the dimension of moral judgment, the judge's moral intuition may prefer Liu Xin to bear the full responsibility for the damage to Jiang Ge's right to life, in order to show that his behavior of entering the room and locking the door first is "immoral". In contrast to the empirical orientation of legal intuition, a judge's moral intuition is generally a priori in nature; it is the judge's inherent emotional response as a natural person, and it is a consideration of the good and bad tendencies of a particular fact. Jiang Ge and Liu Xin's attitude towards each other will naturally touch the judge's moral nerve, the two are likely to be categorized into "justice and courage" and "ingratitude" category, and the latter will inevitably incur relatively negative moral evaluation. In this sense, the judge's thinking in the legal judgment and moral judgment will produce obvious tension, the conflict signals a temporary lack of agreement between the normative and social effects of the decision in the case., and thus it is necessary to seek further coordination of the program.
Secondly, the judge realizes that the legal judgment in the case needs to be adjusted according to the moral judgment. Faced with the possible conflict between legal judgment and moral judgment, the judge is bound to make a decision in the judicial discovery of thinking, that is, whether legal judgment should be subordinate to moral judgment, or moral judgment to legal judgment. It can be considered that the decision is a typical value weighing task, there is no clear rules or standards to follow, but only rely on the judge's own rationally directed choices.. Viewing from the judgment result of Jiang Ge Case, the judges of the two trials actually followed moral judgment in their determination of Liu Xin's behavior., and the author speculates that the motivation may involve the following two aspects: one is from the personal level of the inner conviction, that is, the judge found that the legal judgment and the moral concept of the angle of deviation is too obvious, so that it reached the point of "intolerable" as Radbruch defined it., so the legal judgment can only be subordinate to the moral judgment to have the correctness. Second,the external pressures from the social level, that is, public opinion around the case formed a high degree of unity of the moral point of view, the judicial decision to violate the point of view will produce relatively unfavorable consequences, the judge forced by this pressure also had to make legal judgment to moral judgment. It is also driven by the above motivation, the two trial judges began to amend the initial legal judgment, that is, based on the content of the moral judgment to make legal judgments. Ultimately, the judge's legal judgment is no longer that Liu Xin's behavior is "in accordance with the law", instead, the judge finds that the behavior is "not in accordance with the law", and thus determines the basic direction of the outcome of the decision at the level of thinking.
Under this premise, the judge then attempts to find a new legal basis for the amended legal judgment. In terms of the judicial process "discovery - evidence" of the two-layer structure, the judge's judicial discovery thinking is necessarily characterized by "law finding", in addition to the need to clarify the direction of legal judgment in individual cases, judges also need to find an appropriate normative basis for that judgment. As shown in figure 1, when the judge through the above translation method to amend the legal judgment, the legal norms invoked will naturally change, and such changes tend to displace the weaker or stronger nature of the norms. As mentioned above for Jiang Ge Case analysis, the judge originally arrived at the initial legal judgment that Liu Xin's behavior was lawful based on the most common judicial perception, its legal basis is the "tort liability law" article 31 of the "emergency" rule, which belongs to the category of dominant legal norms.. However, if we look at the judgments of the two trials in the case, the judge ultimately relied on the principle of "fault liability" in Article 6 of the Tort Liability Law to find that Liu Xin's behavior was unlawful., which is categorized in this paper as a kind of disadvantageous legal norms.
Figure 1 "Moral Translation" Thinking Model
In detail, the above two types of norms of the advantage or disadvantage of the nature of the main manifestation of two aspects of the relative difference in characteristics: First, the advantageous legal norms are usually contain specific elements of the rule-based provisions, while the disadvantageous legal norms are mostly more abstract principle-based provisions, that is, the latter norms of the granularity is not as fine as the former. Secondly, the advantageous legal norms are generally based on the facts of the case by the judge naturally, but the disadvantageous legal norms are based on the judge's own subjective determination of the legal judgment of the conclusions of the inverse. Therefore, the latter often do not fit the facts of the case as well as the former.. However, it should be pointed out that the type of amendment or reverse legal norms of the vulnerability is not pejorative, on the contrary, it is precisely because of its norms in the granularity and factual fit on the vulnerability of moral judgment through the norms and be introduced into the judicial decision. It can be argued that The normative basis that judges ultimately find is not only a narrow class of legal norms, but also inevitably carries the attributes of moral norms, which should be part of what Luhmann calls the "structural coupling" zone between the legal system and the moral system.
1.2 Translation actions at the level of judicial testimony
Under the dualistic structure of "discovery-evidence", the translation method of introducing morality into justice inevitably extends from the level of thinking to the level of action. As a natural follow-up to the translational thinking at the level of judicial discovery, the translational action at the level of judicial substantiation is to further transform the substantiation of moral judgements into that of legal judgements on the basis of moral judgements that have already been transformed into legal judgements. In other words, the purpose of such translation is to legitimize moral judgements in the judicial context, and the key issue to be faced in the process is how to reach the corresponding conclusions based on the vulnerable legal norms. It is important to point out that the vulnerability of legal norms is not permanent or constant, but can often be "advantaged" through specific strategies, which constitute the core of the translation action at the level of judicial evidence. It can be found that relevant researches have sorted out relevant dominance strategies in detail, and the main methods involved generally include principle interpretation, value filling and clause referral. Therefore, in order to avoid redundancy, this paper is based on the judgement material of Jiang Ge Case, and summarizes the key points of the judges in the moral translation action into two aspects.
Firstly, by interpreting legal doctrine, judges enhance the logical persuasiveness of vulnerable legal norms as a basis for adjudication. The interpretation of legal doctrine is essentially an interpretive work, the purpose of which is to give meaning to the text of the legal norms, so that their understanding of the legal norms can be equated with the facts of the case. Specifically in the context of Jiang Ge Case, the judge needs to explain the doctrine of the principle of fault liability in Article 6 of the Tort Law, and the fact that needs to be equated with this doctrine is that Liu Xin first entered the house and locked the door. For this reason, the interpretation of the doctrine of the two judgements of the case revolves around two steps: on one hand, the two judgements firstly summarize the rules of responsibility for "breach of the duty of safety protection" from the normative provisions. In detail, the judges combined the principle above of fault liability with the basic principles of civil law such as the good faith and public order and good morals, and then interpreted the content of the duty of safety and security in two aspects: one is the obligation of honest notification and good faith reminder; and the other is the obligation to jointly prevent and resist risks. On the other hand, the two judgements included the liability rule of "breach of the duty of safety protection" on the facts of the case, pointing out that the fact that Liu Xin "concealed the situation related to Chen Shifeng from Jiang Ge" was a violation of the obligation of honest notification and good faith reminder, and the fact that Liu Xin "entered the house alone and made Jiang Ge face Chen Shifeng independently" constituted a breach of the obligation o jointly prevent and resist risks. Under the interpretation of this doctrine, the corresponding vulnerable norms has established a logical initial connection with the facts of the case, and thus the court decided that Liu Xin should bear the responsibility for the damage to Jiang Ge's right to life according to the norms can naturally be understood by the public.
Secondly, by resorting to moral discourse, judges also enhance the persuasive value of vulnerable legal norms as a basis for the adjudication. Under the translational approach to the introduction of morality into justice, the moral element is often in a position of being translated or replaced, but such a position does not mean that it is inappropriate for it to appear in judicial decisions. On the contrary, the moral element is only inappropriate to appear independently from the legal element, so on the premise that the legal judgment of the case has been proved, moral discourse can be used as the value basis of the legal judgment. In the two decisions of Jiang Ge case, the court pointed out that "helping the poor and needy is a traditional virtue of the Chinese nation, and honesty and friendliness is an important element of the core socialist values". At the same time, based on the moral standard, the court emphasized that "Jiang Ge's behaviour of helping the needy should be praised, and Liu Xin's behaviour of betraying trust and justice should be condemned". In this regard, the reasoning of the two judgements in Jiang Ge case fully demonstrated the value evaluation power of moral discourse. Among them, the discourse on "traditional virtues of the Chinese nation" appeals to a kind of moral and cultural background, which relies on the life context of the public to establish a link between the decision of the case and the concept of morality. Correspondingly, the expression of the "core socialist values" appeals to the authority of morality, that is, it explains the moral legitimacy of a case decision by means of recognized norms. Although this kind of moral reasoning does not have direct effect in the judicial sense, with the empowerment of the cultural and authoritative factors above, it will be easy for the audience to be convinced by the morally orientated viewpoints of the decisions. In this sense, the nature of moral discourse in judicial adjudication is rather a rhetorical technique aimed at finding extra-legal support for weak legal norms so that they can regain their dominant position in individual cases.
2.Methodological reflection: the risk of arbitrariness in "moral translation"
These two strategies of translation show that the actual method of "morality into justice" is characterized by its "implicit" nature. Whether in the thought of judicial discovery or in the action of judicial testimony, the process of moral translation is a search for a possible connection between law and morality, so that a moral judgement can be transformed into a legal judgement that can be integrated into the final judicial decision. It is not difficult to understand that there are two parallel logics in the resulting judicial decision: the translated legal judgement is the apparent reason for the judicial decision, which, through the judge's interpretation and argumentation in the judgement, becomes the formal basis for supporting the outcome of the decision. And the moral judgement before translation is the real reason for the judicial decision, which, although it is not directly embodied in the judgement, is the substantive motivation that dominates the outcome of the decision. It can be considered that the moral translation is a kind of packaging or artifice, its essence is to hide the moral judgement in the appearance of legal judgement, with a kind of "invisible" method to complete the introduction of morality to justice. Therefore, from the perspective of the litigant participants or the public, the appearance of the decision of the case involving morality and that of the ordinary cases are not significantly different. Especially under the authority of the court, the special influence of moral judgment on judicial decision will be more difficult to be detected. In the end, relevant litigation subjects will accept the judicial decision containing moral judgement as naturally as the decision of ordinary cases, so as to achieve the expected effect of introducing morality into justice.
However, behind its implicit character, the actual method of "introducing morality into justice" may also entail the risk of "arbitrariness". It is undeniable that the implicit method of translation provides an effective means of introducing morality into justice, but the "effectiveness" of the method only indicates that it meets the relatively basic requirements of feasibility, and does not imply that it is capable of meeting a higher standard of reasonableness. As a matter of fact, the implicit mechanism of moral translation method has a flaw of rationality. Because it hides the core of moral judgment through the appearance of legal judgment, the specific process of moral introduction into justice cannot be known by the outside world, so it is easily subject to the arbitrary control of the subjective will of the judge. It can be seen that the main manifestation of this kind of rationality concern is judicial arbitrariness, that is, the judge may take an arbitrary attitude towards the decision under moral translation, resulting in the irrational uncertainty of the decision result. Specifically, the judicial discovery level of translation thinking has obvious decisive characteristics. In this process, the judge realizes that legal judgment "conflicts with moral judgment" and "needs to be adjusted according to moral judgment", but both of them are purely subjective judgments based on the judge's own cognition, so it is inevitable that there will be the risk of judicial arbitrariness. In contrast, the process of translation in the judicial process does not effectively control the decisions above. Although the judge certifies the legal judgement by "interpreting legal doctrine" and "resorting to moral discourse", the certification neither directly touches the moral judgement itself, nor even attempts to cover up the moral judgement by means of the legal judgement, which constitutes an indulgence of the risk of judicial arbitrariness. In this sense, the risk of arbitrariness in moral translation is essentially the disconnection between the discovery thinking and the certification action, that is, the decision made under the judicial discovery should be interpreted in the judicial testimony, but it faces the lack of interpretation in practice. Therefore, this paper, by comparing the actual gaps under the aforementioned "discovery-evidence" mechanism, attributes the arbitrariness risk of the moral translation method to the following two decisions' lack of evidence.
Firstly, the process of judicial testimony fails to clarify the decision of "what moral judgement is involved in the judicial decision". Judges need to translate morality into judicial decisions precisely because they are aware that legal and moral judgements in individual cases may point to an inconsistency. For example, by evaluating a particular fact as "legal" but "immoral", or "illegal" but "moral". It should be noted, however, that the conflict between these points of view is based on two key premises, namely, that the judicial case actually involves a moral issue, and that the judge's judgement on the moral issue in question can actually be sustained. In fact, the moral judgement itself is in a relatively vague category, because the moral code it is based on does not have written characteristics, so that different judges may form different judgment results even under similar circumstances. Of course, if only on the two trial decisions of Jiang Ge Case, considering the case involves relatively clear moral point, the judge found that "Liu Xin’s behaviour is not moral" can naturally obtain the public's general agreement, and the ambiguity of its legal judgement does not seem to be obvious. However, the non-ambiguity nature of the moral judgement in this case is only a kind of accidental example, which does not mean that the moral judgement in all cases is like this. On the contrary, in the general context of other cases involving moral issues, the judge's moral judgement tends to face a dilemma. For example, in Luzhou Bequest Case, if the judge adheres to the basic thinking of "mutual fidelity between husband and wife", then the bequest will be found to be "immoral"; on the other hand, if the judge based on the cultural concept of "complying with the wishes of the deceased", it will find bequest agreement "moral". Unfortunately, whether it is Jiang Ge Case, Luzhou Bequest Case or similar cases, the judgment made by the court did not specifically distinguish the orientation of the above moral judgment, but only acquiesced directly to one of the moral orientation. Such an approach inevitably raises reasonable doubts as to whether the moral judgement is an objective one that stems from social consensus or is merely the subjective arbitrariness of the individual judge.
Secondly, the question of whether "moral judgement is required for judicial decision-making" is not clarified at the level of judicial evidence. According to the moral translation method explained above, if the judge really believes that there is a conflict between the legal judgement and the moral judgement in an individual case, he or she will readjust the legal judgement in accordance with the moral judgement, in order to achieve the harmony between the normative effect and the social effect of the case. It is not difficult to find that behind this kind of translation method is also a key premise, that is, judicial decisions must take into account and absorb moral judgement, but this premise may not be reasonable in all circumstances. Especially when the moral judgement is clearly opposed to the general legal knowledge of the society, the blind absorption of moral judgement by the judicial decision will lead to many disadvantages. On one hand, the adjustment of legal judgement based on moral judgement may destroy the original judicial inertia, or will change the understanding of specific legal issues in judicial practice, and thus violate the requirements of legal stability. On the other hand, the absorption of moral judgement by judicial decisions may also undermine the noble value of morality itself. As moral judgement is transformed into a legal judgement, a particular morality will be reduced to a legally mandatory obligation and will no longer have a sense of nobility to make people consciously comply with it. In Jiang Ge Case discussed in this paper, these two dilemmas do not seem to be prominent, but in other complex cases involving moral judgement, the question of whether a judicial decision needs to take moral judgement into account emerges. Judges should respond to this question when translating morality, pointing out that the absorption of moral judgement in judicial decisions is indeed necessary, thus proving that their legal judgements can be adjusted on the basis of moral judgement. However, as mentioned above, the current practice of moral translation is not thorough in the interpretation of this issue, which is only to find a legal norm for moral judgement as a support, but not to deeply demonstrate the rationality of the norm applied to the case. As everyone knows, legal norms are highly inclusive and extendable, especially with the support of doctrinal techniques, even moral judgements that are in complete conflict with legal cognition may find a certain normative basis under the legal system. What's more, legal norms that are morally translated are often in a weaker position, and judicial decisions that fail to explain why they are chosen and why other more advantageous norms are abandoned will greatly increase judicial uncertainty.
The risk of arbitrariness, as can be expected, is to make the process of "bringing morality to justice" casual. The arbitrariness of the morality translation method suggests that the judge has full power to decide on the moral issues involved in the case, and that no other subject of the lawsuit or the public can be informed of his or her decision during the litigation process, but can only passively accept the decision after it has been made. Therefore, viewing from the consequences, the judge may impose their own moral attitude on others, which increases the uncertainty of the judicial process. Specifically, if a judge's moral attitudes are in line with the consensus of goodness at the social level, the resulting decision, although not in line with the requirements of judicial democracy, will still be "harmless" in the end. On the other hand, if the judge's moral attitude is obviously contrary to social expectations or absolutely wrong, the reasonableness of his/her decision on the key issues will be greatly reduced, and the result of his/her decision will inevitably deviate from the guidance of judicial values. In addition, the risk of arbitrariness under the moral translation approach is even more serious, as judges may include non-moral considerations in their decisions on moral issues. For example, when examining the above issues, judges may be influenced by extrajudicial factors such as the person's appearance, gender, or education, or they may have a preconceived notion of what the person's behavior is or is not, and then make intuitive judgments about whether the behavior in question is moral or immoral. Therefore, if judicial practice does not impose the necessary constraints on the methods of moral translation, the dilemma of introducing morality into the judicial process goes beyond the risk of arbitrariness and may result in a systemic crisis that could destabilize the laws of justice.
3.The Method of Contingency: The Discursive Orientation of Introducing Morality into the Judicial Process
By reflecting on the risk of judicial arbitrariness above, the contingent method of "introducing morality into the judicial process" should complete the transformation of "externalization". As mentioned above, the risk of judicial arbitrariness arising from the translation of morality is mainly due to the implicit character of its methodology, as the decisions in the translation are reached in an "invisible" manner, and are easily manipulated by the will and attitude of the individual judge. Accordingly, the control of the risk of such arbitrariness should be aimed at overcoming the implicit nature of ethical translation, so that the decision-making questions in it can be answered openly in a "visible" way, so that they can be understood and accepted by the public under the premise of full observation. However, the decisive question in moral translation is at the thinking level of judicial discovery, while the scope of observation by the public is limited to the action level of judicial proof, and there exists a natural gap between "knowing" and "doing". Therefore, the ideal way to introduce morality is to build a bridge over the gap, so that the decision-making questions in judicial discovery can be reflected in judicial testimony and answered and evaluated in judicial testimony, that is, a kind of externalization method should be sought. Of course, the search for an externalization method does not mean that the implicit method of moral translation is completely abandoned, but the intention is to provide the necessary corrections and constraints on the translation method, so as to avoid the relevant decisions from flowing into arbitrariness. In this sense, the method of introducing morality into the judicial process presents a two-stage structure: the implicit method is in the first stage, which provides the basic scheme for moral judgment to be transformed into legal judgment, aiming at realizing the formal feasibility of morality introduction; the explicit method is in the second stage, which is the normative method imposed on the first-stage method, aiming at realizing the substantive reasonableness of morality introduction.
Specifically, it is most appropriate to adopt the method of "argumentation" for the externalization of "morality into justice". In the general theory of legal method, the regulation of judicial evidence is mainly realized through the method of argumentation, and there are two types of possible directions: one is to adopt the monologue-style "exposition" method, that is, to require the judge to explain in detail the reasons and bases of his decision, and this kind of explanation is often required to be reflected in the judgment. The second is the use of dialogic "discussion" method, that is, the judge and the participants in the litigation together on the decision to communicate, in order to reach a mutual understanding of the decision through verbal understanding. Among them, the discursive method is obviously more suitable for the argumentation of introducing morality into justice. The purpose of its dialogical construction is to realize the public disclosure of the introduction mechanism in multi-party interactions, so it is easier to achieve the above externalization goal than the monologue construction of the discursive method. In other words, the core of the discursive method is the "intersubjectivity" emphasized by Habermas. On the one hand, since argumentation involves a game between judges and other litigants, if judges fail to fully demonstrate their views in translation, they may be persuaded by others who hold opposing views, which in turn requires that their translation must be in line with translation thinking. On the other hand, also thanks to the argumentative method of multi-party communication characteristics, if the judge in the translation action expressed unreasonable or wrong views, naturally will be pointed out and corrected by other subjects, thus ensuring that the translation action can be observed and evaluated. Therefore, it can be considered that the normative significance of the argumentation method is to realize the reflective integration of the judge's decision, and according to the specific decision problems in the process of morality imported into the judicial process, the corresponding argumentation scene will be divided into the following two.
On the one hand, for the problem of "what kind of moral judgment is involved in judicial decision", it is necessary to carry out a kind of "moral generative debate". The so-called "moral generative argument", as the name suggests, is the argument around whether or not a particular moral judgment can be established, which is essentially a method of proving moral judgments. Of course, the validation of moral judgment is not a completely arbitrary work, and as a normative judgment, the validation must have a strict structure, which is not much different from the validation structure of legal judgment. Therefore, under this sense of relevance, the method of moral generative discourse can be carried out according to the logic of external and internal validation: in which the external validation of moral judgment aims at determining the moral standard on which the judgment is based, but given that the moral standard does not have relatively written normative expression, it can only be communicated by the parties to the discourse to form a relatively consensual cognition. Correspondingly, the internal validation of moral judgments requires the introduction of judgments by means of the above moral standards, in which the parties to the debate can comprehensively utilize a number of tools in logic and rhetoric, and ultimately make moral judgments that can satisfy the requirements of formal reasonableness and content coherence. In a nutshell, the ultimate task of moral generative argumentation is to transform the judge's personal moral consideration into a moral consensus recognized by the society, thus laying the foundation for the subsequent formal introduction of moral judgment in the judicial scene.
On the other hand, for the question of whether moral judgment is required for judicial decisions, a type of "moral judicialization debate" is needed. In contrast to the orientation of the generative discourse on morality, the focus of the moral judicialization discourse is not on moral judgments per se, but rather on the question of whether particular moral judgments can be translated into legal judgments, which is why this paper calls it a "judicialization" discourse. In fact, such a construction is very reminiscent of Petrzelnick's theory of extra-legal value "translation to law", i.e., when a judge wants to derive legal conclusions from a collection of non-legal values, he or she needs to follow the "transformation of categories" and "transformation of criteria", i.e., when a judge wants to derive legal conclusions from a collection of non-legal values. The theory of "transformation to law" is that when a judge wants to derive a legal conclusion from a collection of non-legal values, he needs to follow the dual rules of "category transformation" and "standard transformation". According to this theory, moral judgment of the judicial debate naturally involves two specific issues: one is based on the scope of the requirements of the transformation, the parties need to clarify the moral judgment of the case whether there are legal norms as the support, so as to match the moral judgment of the necessary sources of adjudication law. Secondly, out of the standard transformation requirements, the subjects also need to examine the corresponding legal norms and case facts of the degree of fit, so as to avoid the shock of judicial inertia caused by the introduction of moral judgments.. In this sense, the purpose of moral judicialization argument is to prove the necessity of moral judgment for judicial adjudication, and then formally embed the moral consensus in the social level into the legal judgment in the judicial level.
Of course, the normative requirements of the procedural system are also implied behind the above argumentation method. The foregoing has largely clarified that the method of argumentation can be used as a natural point of "introducing morality into justice", but the current discussion is limited to the technical composition of the method itself, and has not yet touched upon its operational mechanism in practice. It is not difficult to understand that, because the technical composition of argumentation is characterized by inter-subjective interaction, its practical operation will inevitably be manipulated by the will of the subject, and if it is not subjected to the necessary constraints, it will fall into the situation of technical abuse or arbitrariness. Therefore, after clarifying the direction of moral argumentation, the judicial field is necessary for the realization of its argumentation and set up institutional norms to guide the judge to correctly carry out the argumentation. Specifically, the legal method of institutional norms generally have two types of substantive and procedural orientation, and this paper's focus on the procedural regimes of the regulation of moral argumentation primarily is mainly based on a comparative consideration of the characteristics of the two.. Among them, the significance of the substantive system is limited to constraining the results of moral argumentation, which is intended to set reasonable evaluation standards for the consensus reached by all parties, but such consensus is often highly context-dependent, and the corresponding evaluation standards are often difficult to be generalized due to the plurality of values. In contrast, the goal of the procedural system is to constrain the process of moral deliberation, which does not directly examine whether the consensus reached by the parties through deliberation is reasonable, but pays more attention to how the parties reach a consensus, i.e., facilitates the generation of a rational consensus with the help of procedural rules. In other words, the object of such a procedural system is to regulate the social environment in which moral deliberation takes place, so that all parties can communicate benignly in a comfortable environment, in order to subsequently arrive at a mutually recognized consensus. On the other hand, in the absence of a procedural environment, all discourse would be reduced to disorderly bickering, and relatively reasonable consensus could not be analyzed. Therefore, corresponding to the above technical distinction between moral generative discourse and moral judicialized discourse, the procedure of moral discourse will also form a dichotomy of "generative discourse procedure" and "judicialized discourse procedure," which constitutes an institutionalized device for the introduction of morality into the judiciary. The two constitute an institutionalized device for the introduction of morality into the judiciary.
4.Methodological extension: procedural norms of "moral discourse"
The aforementioned analysis of the contingency of the method of "introducing morality into justice" can be summarized as a coherent logical chain of "decision-argument-procedure". Among them, the decision of "what kind of moral judgment is involved" and "whether moral judgment is needed" in judicial decisions is the base of the argumentation method, which needs to be answered openly through moral argumentation in order to avoid being manipulated by the judge's personal subjective will. At the same time, the procedural system around the "moral generative debate" and "moral judicial debate" is the final destination of the argumentation method, which aims to provide support and guarantee for the operation of moral argumentation, so that the method can be effectively realized in a good environment. Therefore, according to the guidance of the logic, the methodological orientation of morality into the judiciary will inevitably be extended to the procedural system, the introduction of moral judgment into judicial decision-making can only be reasonably acceptable if judicial practice follows a system of rational moral deliberation.. For this reason, the following article will start with the conditions for the initiation and conduct of the argumentative process to build an institutional system of ethical discourse processes at the macro level, and to provide a specific analysis of the normative content of the system..
4.1 moral argumentation program initiation rules
In the judicial process of individual cases, the initiation of the moral argumentation procedure is at the expense of the suspension of the regular judicial procedure. Whether it is for civil, criminal or administrative cases, the regular judicial process is generally in accordance with the order of the trial procedure and the adjudication procedure, and finally comes to an end after the court’s judgment and enforcement. Therefore, for cases involving moral issues, it is most appropriate for the moral argumentation procedure to be attached to the above conventional judicial procedures, so that the introduction of moral judgment can be realized simultaneously at the end of the case. Regrettably, however, such conventional procedures do not leave sufficient room for moral argumentation. In other words, the method of argumentation depends on the communication or negotiation of multiple subjects on the decision, and most of the judicial procedures do not have such an open condition, except for the court argumentation under the judicial procedure, which can barely fit. However, the courtroom debate only provides an opportunity for both parties to the lawsuit to discuss with each other, and it is difficult for the judge who needs to explain the decision to participate as an equal subject, so it is still insufficient to provide an environment to support the introduction of morality into the judiciary. Moral discourse, therefore, needs to be carved out of the regular judicial process and exist as a separate category of process alongside it.. It is not difficult to understand, the independence of the moral argumentation procedure determines the specificity of the rules for the commencement of proceedings, because the judge and the litigation participants can not at the same time in a number of parallel procedures, when the case of judicial process needs to start the moral argumentation procedure, the corresponding conventional judicial procedures should be temporarily suspended. In this sense, the significance of the rules of moral argumentation program is not limited to the program itself, it has a significant role in the overall judicial process, and the question of when to start such a program, in what way to start, will inevitably affect a series of subsequent related procedures. It is also for the consideration of the particularity, this paper divides the rules for initiating the moral argumentation process into the following two aspects.
First, rules on the timing of commencement of proceedings. As a program alongside the conventional judicial process, the essence of moral argumentation program is a kind of "external insertion" to the conventional judicial process, so the start of the program must take place in the process of the conventional judicial process is underway. According to this logic, the issue to be examined with regard to the timing of the commencement of such a procedure is whether the procedure needs to be inserted before or after a conventional judicial procedure. In this regard, this paper represents the logic of the morality debate program as the structure of Figure 2, and the time of commencement of the program should be set at the end of the judicial trial program and before the beginning of the judicial adjudication program. On the one hand, the moral argumentation procedure is set after the judicial trial procedure, so that the argumentation of all parties can be established on the basis of the facts of the case have already been determined, which not only helps to clarify the objective premise of the argumentation, but also avoids the subjective interference of the external "noise" on the argumentation. On the other hand, the reason for placing the moral argumentation procedure before the judicial decision procedure is to take into account that the result of the moral argumentation will affect the judicial decision of the case, if the moral argumentation is carried out after the judicial decision has already been made, the consensus formed by the argumentation will not be able to produce any meaning for the decision of the case. In other words, the insertion of the moral argumentation procedure between the judicial trial and the judicial decision procedure enables the procedure to make a smooth transition from the regular judicial process, and after the procedure is over, it can be naturally connected to the track of the regular judicial process. Therefore, under this procedural rule, the judge and the relevant subjects will have sufficient time to examine the moral judgment, thus creating the most basic rational environment for the subsequent mutual discussion.
Figure2 Procedural structure of the "moral discourse"
Secondly, Rules on modalities of commencement of proceedings. The procedure of moral argumentation cannot be initiated out of the blue, if there is no special circumstance in the trial process of the case, the judge or other litigating subjects naturally will not initiate any additional procedure, but will only follow the regular judicial procedure towards the final decision. As a matter of fact, the reason why the relevant subject initiates the procedure of moral debate is precisely the difference in intuition, that is, they realize that there may be a conflict between the legal judgment and the moral judgment of the case, so we hope to clarify what moral judgment is through discussion, and then consider whether to introduce it into judicial decisions.. Therefore, according to the difference of the subject of the source of the conflict intuition, this procedure will naturally be initiated "ex officio" and "on application" two types of direction. Among them, the ex officio initiation is the judge himself perceives the tension between the legal judgment and the moral judgment, through other litigation subject proposes to enter into the moral discussion procedure, or the court president and the trial committee, etc. think that the case may involve the conflict between the law and the morality, and directly ask the judge to start the moral discussion procedure. Correspondingly, a party who finds a conflict between a legal judgment and a moral judgment may request the judge to open a deliberation process. In this sense, in order to make the two types of initiation can be effectively realized, but also in order to avoid the abuse of such initiation and judicial chaos, the initiation of the specific rules should be followed to restrain the initiation of the corresponding behavior as the core. Specifically, the rules of this type of initiation should require the subject initiating the moral argument to provide the necessary justification, which needs to clarify the possible conflict between the legal judgment and moral judgment of the case, in order to confirm that there is a real need for the parties to open the moral argumentation procedure. Accordingly, when a judge, court president or trial committee initiates ethics proceedings ex officio, he or she should point out to the parties in detail the legal and ethical issues facing the case, thus indicating that there is a certain degree of deviation between the two. Similarly, when a party initiates an ethics proceeding on motion, they also need to clarify the moral judgment that may be involved in the case, and in addition, It is also necessary for them to adduce evidence through social surveys or class search reports, etc. to prove that the moral judgment will indeed deviate from the usual legal cognition.
It should be noted that the direct effect of the above rules on the initiation of the moral argumentation process is to determine whether or not vulnerable legal norms can be applied in judicial decisions. The reason why judges need to engage in moral importation in individual cases is precisely because they want to apply the weaker legal norms that match their moral intuitions and discard the stronger legal norms that are contrary to them. The reason why the parties need to initiate a moral deliberation process is to clarify the moral orientation of the case through deliberation, so that the weaker legal norms can be more legitimately incorporated into the judicial process. Therefore, the effect of the rule of initiation of the argumentation procedure is due to this: when the relevant subject of the initiation of the behavior in line with the requirements of the above rules, moral judgment for the introduction of the judicial decision formally started, and then the judicial decision can not follow the conventional legal cognition and make, it should allow moral factors to the judicial process to make the necessary adjustments; and if the relevant subject fails to follow the rules of initiation of the argumentation procedure, it will still be in the regular If the subject fails to follow this rule, he or she is still under the scenario of the regular judicial process, and the decision made by the judge can only be directed by the regular legal cognition, and no disadvantageous legal norms can be applied. Further, if the judge applies a weak legal norm without the parties' initiating deliberative proceedings, the result of the decision constitutes a type of judicial error that should be corrected in the appeal or trial supervision proceedings.
4.2 Rules for Conducting the Ethics Debate Process
Once the moral argumentation process has been formally initiated, another issue facing the parties is how the process is to be conducted. As the constituent elements of the normative system of the moral discourse procedure, the rules of initiation and the rules of conduct of the discourse procedure have a sense of succession: the former is to guide the parties "how to prepare for the discourse" when the procedure has not yet been initiated, i.e., to ensure that the "water source" of the discourse is "harmless"; the latter is to guide the parties "how to participate" after the procedure has been formally initiated, with the purpose of guaranteeing the cleanliness of the "water" of the argument. From this point of view, the core objective of the rules for the conduct of moral discourse is to keep the overall process of discourse as orderly and controlled as possible, so that all parties can reach a consensus in a good environment and move towards the end of the process. Of course, considering that the contents of moral generative discourse and moral judicialized discourse are not the same, the structure of the two discourse procedures must be different, and their corresponding rules of procedure must also be different. Therefore, this paper will analyze the rules of proceeding that should be followed by the two types of argumentative procedures based on this differentiated position.
Among them, the procedure of "moral generative discourse" should be conducted according to the rules of social discourse in the broad sense. Given that moral generative argumentation is a method of substantiating moral judgments, the parties do not need to examine the application of the law at the judicial level, but only need to focus on the moral point of view of the case and its possible ethical norms, which belongs to a general type of "social norms argumentation" process. Under this logic, the procedure of moral generative debate naturally has the quality of "socialization", and its procedure needs to be placed under the broad social field, and all parties should also participate in it in the equal capacity of general social subjects. Therefore, from the judge's point of view, its role in the argumentative procedure is only ordinary participants, and does not enjoy a special status above other participants, but also no longer have the dominant authority under the conventional judicial process. From the point of view of the parties or other litigants, they have the same rights as the judge in this kind of argumentation procedure, and therefore they should have the basic qualification to fully clarify their own moral opinions and refute others' opinions. In addition, since the moral generative debate is an open and socialized debate in which even ordinary members of the public who are not directly related to the case can participate, such subjects also have the right to express their opinions and participate in the debate process, and their rights should not be significantly different from those of the judge or the other subjects of the litigation. In this sense, the process of moral generative deliberation can be designed with reference to the broader argumentation process, with the specific steps covering the conventional aspects of confrontation, argumentation and final decision, and ultimately arriving at a consensus conclusion that is generally recognized by all parties. Correspondingly, this kind of argumentative procedure rules of conduct can also be quasi-generalized argumentative procedure rules of conduct, which at least need to include the rule of liberty, the burden of proof rules, the rule of standpoint and other classic system, this paper will not repeat this.
In contrast, the procedure of "moral judicial argumentation" must be conducted according to the rules of purely legal argumentation. As a continuation of moral generative argumentation, the goal of moral judicialized argumentation is to examine whether the moral judgment obtained in the previous procedure can be introduced into judicial adjudication, so its argumentation procedure must be carried out in a judicial scenario, which is distinctly different from the socialized construction of the former procedure. On the one hand, the judicialized deliberation procedure involves the substantive issues of case adjudication, which can only be participated by the subjects directly related to the case adjudication, and it is not appropriate for the general public to join in from the social field. On the other hand, the judicialized argumentation process aims at discovering the definitive conclusions of the case decision, and it is not possible to have an absolutely open discussion as in the case of the generative argumentation process of morality, instead, it is only possible to carry out a purposeful argumentation under the leadership of the judge. Accordingly, it can be seen that the procedure for the judicialization of ethics is essentially a legal procedure in the narrow sense of the term, and its rules of procedure are based on those of the legal procedure.. Specifically, such rules of procedure include two requirements: first, the judge should be given special power to control the process of argumentation, and his or her position in the procedure should be higher than that of the parties, so that the parties' views on whether moral judgment can be introduced into the judicial decision can be adequately heard from a neutral position, so as to arrange the topic of argumentation in this stage and the subsequent stages. Secondly, the two parties should be given the basic right of double argumentation, that is, they can not only argue their own viewpoints on the issue of moral importation in the procedure, but also point out the inappropriateness of the other party's relative viewpoints directly, so as to reach a logical connection between claim and rebuttal. On the basis of this argument, the judge will be able to determine whether the parties have reached a consensus, and then should be based on this consensus to reach a final decision, and be discussed in detail in the decision documents.
In addition, the rules for the conduct of ethics proceedings also involve the termination of the proceedings. Generally speaking, since the deliberative process involves communication and understanding between multiple subjects, the termination of the process is naturally marked by a stable and mutually recognized consensus between the parties.. However, in more complex or special circumstances, even after thorough discussion, the parties are not able to eliminate their differences, and it is difficult to form a consensus, so it is necessary to resort to a specific termination rule to determine the final conclusion of the guide. It can be considered that the essence of such termination rules is the legitimization of the power of decision, that is, through the legal system to a party to authorize the main body of the debate, allowing it to decide when the end of the debate process and the end of the process will be used to decide what viewpoints. Of course, considering the functional advantages of the judge in the judicial scenario, it is most appropriate for him or her to be the decisive subject authorized to terminate the procedure. In detail, the judge should declare the termination of the proceedings after a certain number of rounds of arguments, at which time he or she should obtain the consent of the parties to the proceedings and make the necessary clarifications and summaries of the outstanding issues in dispute. In addition, the judge shall publicly justify his or her view of the unresolved issues, and his or her subsequent decision shall not only contain a detailed explanation of that view, but also a statement of agreement or disagreement with the various views of the parties. It should be pointed out that, although the judicial decision through the termination rule still contains the judge's personal subjective decision, such decisions are based on the completion of the necessary discussions between the parties, and it is an act of necessity when it is difficult for the parties to reach a consensus, so that the conclusions of the decision should also be accepted as reasonable.
Conclusion
The methodological review of the two verdicts in the Jiang Ge case shows that the ideal method of "morality into justice" must have a polemical undertone. In the interaction between law and morality, the core significance of the polemical method is to provide a kind of "rational constraint", i.e., it is on the premise of recognizing that moral judgments can be imported into judicial decisions, but also through procedural norms to impose the necessary restrictions on the process of their importation, so as to make the results of the imported judgments have reasonable acceptability. As a matter of fact, as a normative tool to harmonize multiple values, the rational constraints of the argumentative method are not limited to the scenario of morality being introduced into the judiciary, but can be extended to all extrajudicial value judgments being introduced into the judiciary. It is not difficult to understand that, in addition to the moral judgment revealed by the "Jiang Ge case", the extrajudicial value judgment faced by the judicial adjudication may also involve politics, religion and culture, etc., and such judgments all exist in the same awkward situation as moral judgments in general: firstly, most of the extrajudicial value judgments are related to the social focus of the issue, and the judge needs to import them into the judicial adjudication for consideration. First, most of the extrajudicial value judgments are related to social issues, and judges need to introduce them into the consideration of judicial decisions in order to show the mobility of the interaction between justice and society. Secondly, since extrajudicial value judgment often lacks stable legal sources to support them, the judge can't take it as the direct basis of judicial decision, so it must be with the help of certain methods to complete the introduction. It can be predicted that the dual program of "moral argument" constitutes the "general method" for the introduction of extrajudicial value into judicial decisions. Among them, generative debate constitutes the basic procedure of value introduction, which searches for the basis of value judgment itself through communication in the social situation, so that the judge's personal value intuition is transformed into the value consensus recognized by the society. In addition, judicialized argumentation is the advanced procedure of value importation, which matches the possible legal basis for the value judgment by means of argumentation in the courtroom, thus formally embedding the value consensus at the social level into the legal judgment at the judicial level. Accordingly, the procedural norms based on argumentation are not only an institutionalized device for "moral importation of justice", but also an institutionalized device for "value importation of justice" in a broader sense, and it is only through open communication between the judge and the subjects concerned, guided by this norm, that extrajudicial value judgments can ultimately be judicially justified and accepted.. In this sense, the method of argumentation undoubtedly highlights the deep logic of "value into justice" - value not only needs to be realized, but also needs to be realized in a visible way.