The spirit of justice of law
Whether in the west or in China, the original intention of law is to safeguard justice. But in practice, some problems will inevitably arise: whose justice does "justice" mean here? What is the standard of interpretation of justice? Can the implementation of the law achieve the purpose of "justice"? ..... Different answers to these questions have made substantial differences between Chinese and Western laws.
The book mentions the concepts of "semi-rule of law" and "complete rule of law", and holds that modern western countries are a country with "complete rule of law". Most of them adopt the principle of "the supremacy of law", and even the government cannot override the law. Take the famous Watergate incident in America as an example. "In the United States, from the president down to the ordinary people, they are completely equal before the law." Even if the Nixon administration carried out illegal eavesdropping, it would pay a price before the law. The term "court next to the government" is put forward here. Another case, Dart Mao Se College v. Wu Dehua, also embodies the western principle that "the government has no privilege before the law". The issue of "keeping or abolishing the death penalty" in western law is controversial. Regardless of the opposition to the abolition of the death penalty for the time being, many reasons in favor of the abolition of the death penalty are worthy of our consideration: since the purpose of punishment is to prevent crimes, not to kill criminals, then killing criminals will also kill the possibility that criminals may turn over a new leaf; Historically, the death penalty has not played a role in preventing homicide ... More and more countries have abolished the death penalty, which can also reflect the spirit of justice in the bones of the law.
China is deeply influenced by historical traditions, which can be reflected in all aspects, and the law is no exception. Influenced by autocratic monarchy for a long time, China once had a strong color of "rule by man", which the author called a "semi-rule by law" country. Similarly, China people generally choose the method of "letting the government educate itself and correct itself". At this time, the court exists in the government, and people place their hopes on the "moral self-discipline" of the government and its personnel. China people pay attention to the inheritance of moral values such as "benevolence" and "courtesy" in China traditional culture, and even in today's society, they can't get rid of its influence. Therefore, the issue of "abolishing the death penalty" in China is something that needs to be considered for the sake of the values shared by most of us (such as "it is only natural to kill people for their lives").
For the justice of legal content and form, westerners pursue "justice of legal form", and the legal form involves such issues as whether the content of the provisions is clear or not; Whether it is feasible; Whether it is open or not, etc., is also the most basic issue of the law. At the same time, the west attaches great importance to the "natural nature" of justice. The meaning of natural justice actually lies in "you can't violate the obvious fairness and justice". Sometimes, when the result is obviously unfair, we should restore the "true colors" of justice. These are the spirits that we can learn and cherish.
Judge Legislation-Case Law
We usually think that "the legislature is the institution that makes laws. The content of the law is decided by the legislator, and the judge is only the' mouthpiece' of the law. " However, some people in the west say that the content of the law is decided by the judge. Judges in western countries used to judge similar cases, which is called "case law".
The article "law = specific judgment" in the book explains this kind of "judge legislation" well. In some cases, we can't simply think that "the law is a universally binding principle, and the court that made the judgment must abide by it, and the judgment is only the conclusion given by the court to the specific lawsuit". For example, in Hutchison's property inheritance case in the book, the mother became an unconscious "vegetable" because of an accident, and Hutchison asked the judge for permission to inherit, saying that the cessation of consciousness was equivalent to death. However, the law does not clearly stipulate whether a "vegetable" belongs to the "legally deceased", so the judge sentenced him according to his own understanding, and hutcheson got his wish. Here, the meaning of the law itself depends on the judge's understanding, and it makes sense to say that "law = specific judgment". Westerners think that laws are decided by judges precisely because laws often need to be interpreted by judges, and judgments are also made by judges and executed by judges. This view was once popular in the west. This case law has many advantages: 1. It can save time and energy for later judges to decide cases; 2. Can maintain the unity and stability of the law; 3. The case is easy to understand, so the law is deterministic and predictable; 4. As an elite legal culture, it can play a beneficial role in correcting the deviation of mass legal culture.
Just as there are no two identical leaves in the world, there are no identical precedents in many cases. At this time, the judge's method of "distinguishing" is particularly important. There is no reason to make "the same judgment" for two cases that are not exactly the same. It is really necessary to "follow the old rules", but the premise is that "the cases are all the same." They say the law must be "equal" but also "fair". We also need to pay attention to the difference between the law in the mouth of legislators and the "law" in the mouth of judges, and the relationship between them. Sometimes, in the practical sense, only paying attention to the former and ignoring the latter will only get the opposite result. Although the judge's decision is very important, we must not ignore the "law" announced by the judge. In the actual process, case law may also make the law fall into "contradiction"-even in countries with developed rule of law, there will be internal contradictions in the law, and there are still many things to be done here.
Turning to China, although the case law system has not been established in China's judicial system, the method of "the influence of existing cases on the judgments of other cases" is still applicable. Although the former case has no legal attribute, it actually plays the role of "explaining" the law. There are guiding cases and announcement cases issued by the Supreme Court in China, which are quite authoritative. We attach importance to the abstract provisions of laws and regulations, but we never stop at the provisions and attach importance to the interpretation of laws and regulations. The most important explanation is judgment. Although case law is good, we should still respect the differences in national conditions. We can learn from it, but we won't copy it.
Wisdom of legal culture
There is a concept in western legal culture: there must be not only "purpose" rationality, but also "tool" rationality. Plato said, "A judge should have profound knowledge and rich experience, but also have the judgment of good and evil in law and the wisdom of promoting good and punishing evil." The book The Wisdom of Bags embodies this point.
There is a "principle of presumption of innocence" in western criminal proceedings. We usually feel that if the defendant is tried, he is likely to be guilty. Then why assume he's innocent? They believe that while cracking down on criminal activities, we should be alert to the possibility of the defendant's freedom rights being violated, and in the process of criminal proceedings, we need to establish a system to protect rights. It is precisely because of the emphasis on rights that the starting point of "presumption of innocence" is their value choice.
Any problem must have a solution or form, and that is "procedure". We usually think that the procedure is only a matter of means, not as important as the substantive problem to be solved. Therefore, there is a saying in China that "methods serve the purpose". In western countries, "due process" is a very important concept, and they think that the procedure as a method is the most important. Different trial procedures usually have different trial results, so some people say that "procedure determines justice." "ineffective induction" can be used as an example. Because induction is not a proper procedure, the evidence obtained through induction cannot be used as the basis for finalizing the case.
"Follow the trend" is a word that implies the calmness and wisdom of managers. We should know not only how to use the situation, but also why. Take 19 17 American Prohibition Act as an example. Not only can the law not prohibit drinking, but it makes people drink more "prairie fire". Therefore, the United States abolished the 18th Amendment and recognized the legality of drinking. However, the new measures have made the people clap their hands and applaud that hell should pay for making trouble by drinking, and members of Congress are also thankful and overjoyed for their management according to law. In their view, the reason for taking advantage of the situation lies in obeying public opinion, and so does the wisdom of managers.
The main part of the book begins with Socrates and ends with Socrates. Socrates chose to accept even unjust laws, which was his choice. But this is not important. What matters is his reflection: "When you know a kind of justice, reflect on the opposite justice." The reason why western legal culture is full of vitality lies not in its perfect rule of law, but in its balanced self-reflection. The healthy development of legal culture needs our constant reflection.