First, the growth experience-the source of justice thought
The formation of a person's thoughts is usually closely related to his growing experience, and the formation of Lord Tanning's view of justice is determined by his family background and growing experience. 1899 Daning was born in a respectable and wealthy family in Victorian times. His ancestors were Danes, who had a natural connection with the law. According to research, the word "law" itself is a word in Danish. Usually, Danes like to argue, and they like to get together for legal debate. This tradition had a great influence on Denning. In his autobiography Family Story, he wrote: "Perhaps this is why I like to listen to legal arguments before the judgment, instead of writing them all down." [2] After Tannin was born, his parents gave him the Christian name Alfred, which was also related to the law. Because 1899 happens to be a thousand years after the death of Alfred, the famous ruler of Anglo-Saxon England. During Alfred's reign, he attached great importance to law and paid attention to the goodness and justice of law. At that time, people respected him. Only a thousand years later, tannin was born. Therefore, his parents took "Alfred" as his Christian name, hoping that when he grew up, Tannin would care about the law like a king and be full of justice.
Tannin's parents are very decent people. "My father is kind and considerate and is loved by everyone. My mother is strong, determined to do things, and never talks nonsense. " [3] These characters have played a subtle role in the formation of young tannin's ideological character. Especially my father's experience as a juror has a greater influence on Daning. Tannin's father mainly runs a silk shop, but he was called by the government to be a juror in the circuit court and appeared in court almost every day. Jury system is one of the important measures to safeguard judicial justice in Britain. It was originally a French system, and 1066 was brought to Britain with the Norman invasion, leaving a deep imprint on British law. During his time as a juror, Daning's father worked hard and was fair. It is said that John Lawrence, the then red judge, had a good impression on him. Tannin also deeply felt that his father's thoughts had a greater influence. He said, "As early as when I joined the jury, I knew something about the jury. He is the head of the family and is fully qualified to serve as a juror. Jury is such a job that it teaches ordinary people the most useful lesson about civil rights. This course has been handed down from generation to generation for 800 years. The British who were appointed as jurors did play a decisive role in safeguarding justice. " [4] Because jurors at that time must have such qualities: they must be able to use their general judgment in the work that needs judgment; Must have knowledge about the world and people; They have the idea that individuals are subordinate to society, and their desire for fairness and reasonableness is the driving force of their actions; Most importantly, they are willing to fight for a fair verdict for the dispute they want to solve. Therefore, the British people regard jury participation in court trials as an important means to achieve judicial justice and social justice. Then, living in this social environment and family atmosphere, Daning's thought is naturally influenced by this justice value concept, so that Daning, who is only 10 years old, has the idea of becoming a justice messenger-lawyer when he grows up. "Once-I was about 10 years old-I looked up and said to my mother,' I think I should be a lawyer'." [6] Although he didn't understand what lawyers do at that time, he already knew that lawyers, like jurors, are upright people and defenders of social justice.
Learning period is an important stage in the formation of Daning's justice thought. Daning likes reading very much since primary school. He said, "I read a lot of books, and I read quickly." [7] After the outbreak of World War I, the teacher went to war and Tannin taught himself. He taught himself calculus, dynamics and statistics, and read many famous English literature. These courses and classics have played an important role in Tan Ning's later understanding of social and legal issues, especially the positive figures created in English literary classics have greatly shocked Tan Ning's thoughts. According to Tan Ning's memory, "I have been familiar with the poems of the English poet Tennyson since I was a child, and have been urging me ever since: What a fair/glorious group the Knights Roundtable is, the elite of men/it is a symbol/rumor of that extraordinary world, and we won't talk about it;" Slander, we don't listen/go all over the world to smooth out the evil in the world. " 〔8〕
In this way, through diligent self-study, Tannin was admitted to Magdalene College of Oxford University to study mathematics on June 19 16. While studying mathematics at Oxford University, Tannin began to read a large number of legal classics, including the Latin Institution of Emperor Justinian and the Bible. He recited all the aphorisms and aphorisms about "justice" in the books he read, and these legal classics had a great influence on the formation of Tannin's justice thought. The first words of the Code of Emperor Justinian are: "Justice is the eternal purpose of treating people fairly." /"Law is knowledge about God and man-science about justice and injustice." /"The motto of the law is: be honest, do not hurt your neighbors, and treat others fairly." These words have been widely circulated for hundreds of years and have a far-reaching impact on Daning. He believes that these words express the moral and philosophical basis of law in all times. At that time, everyone in Magdalene College of Oxford University would say: Ius suum cuique (treat people fairly). [9] It can be seen that the Code of Emperor Justinian has a far-reaching influence on the formation of people's just thoughts. There are also several proverbs in the Bible: "The world is there!" God has shown you his intention, that is, to do good, have mercy and walk humbly with God. This also had a great influence on his tanning during his study, which made him "uphold justice" in his later legal practice. Until he was over 80 years old, Tannin still clearly remembered these aphorisms in the Bible.
In the process of growing up, it is also very obvious that tanning is influenced by the justice thought of famous British judges. In the book The Future of Law, Daning specifically mentioned some judges whom he admired. Britain is a country with a tradition of justice, and the immortal judges have powerfully expounded the concept of judicial justice. For example, Henry Blackton put forward the requirement that "the king is not subject to people, but to God and the law" to ensure the justice of the law. Francis Bacon's warning to judges: An unjust judgment is worse than many unjust actions. These unjust acts only pollute the water flow, while unjust judgments destroy the water source. Sir Edward Coke "As the Chief Justice, he is both smart and fair." [10] In particular, Justice Kirk dared to confront the king for the sake of judicial justice during his tenure as the chief justice of the throne court. In the case of 16 17, the king wrote to cork, asking cork to discuss with the king before hearing the case, but cork flatly refused. Kirk believes that "if you obey your majesty's orders and stop the trial, it will delay the execution of justice." This is against the law and the oath of the judge. "[12] Kirk's behavior was retaliated by the king, who quickly dismissed him as a judge. However, in the eyes of the British people, Kirk will always be the embodiment of justice. Mansfield, another judge and jurist whom Tanning worships, is also because Mansfield has the character of inputting the principles of fairness and conscience into the fixed formula of our law. He liberated the law from stereotypes, details and some narrow ideas. He introduced a series of fair and reasonable principles into the law. [13] Daning praised Mansfield's attitude towards justice: in order to achieve justice, even if the sky falls, it will not hesitate. Wolsey, a famous judge, is also a respected predecessor of Tannin. Denning once pointed out that "wolsey's advice in Henry VIII-'Be fair, don't be afraid' is in line with my philosophy and my goal." [14] Obviously, all kinds of comments on justice made by the above-mentioned famous judges and jurists in British history played a key role in the formation of Tanning's judicial justice thought.
In a word, Lord Denning's thought of judicial justice was formed under the influence of British social environment, family and education, which laid a solid ideological foundation for him to adhere to fair justice and be loyal to his duties in his later career as a lawyer and judge. In his life, Tan Ning consistently implemented the principle of judicial justice and made unremitting efforts to realize judicial justice. 198 1 In the book Family Story, Daning summarized his philosophy of life into three articles, the first of which was Realizing Justice. Indeed, he struggled for judicial justice all his life, which is really admirable.
Second, legal justice-the basis of judicial justice
Justice is an eternal topic in human society and the fundamental starting point of law. As early as ancient Greece, some thinkers had an insight: among all the means to achieve justice, law is the most promising. People usually think that justice is a good quality that a legal system should have. Law can only show its goodness in fairness and justice, and an ideal law often becomes the embodiment of fairness and justice. Justice is the primary value of law, and it is generally believed that "good law" is the basic premise of judicial justice. Because a good law must contain the spirit of justice, it should reflect objective laws, conform to the trend of the times and represent the will of the people, so it is called legal justice or just law. In other words, legal justice is the foundation of judicial justice, and judicial justice is actually the realization of legal justice. In view of this, Lord Denning expounded the issue of legal justice in many places in his works.
Tannin strongly advocated the justice of law itself. He believes that "law involves justice, what is justice"? "I just want to suggest that justice is not what you can see. It is not temporary, but eternal. How does one know what justice is? Law is the application of justice in our daily affairs-although it is not completely correct. " [15] He also pointed out that the important reason why people obey the law is that the law is just. "People respect the truly correct and just legal rules and hope that their neighbors will abide by them, and of course, they will abide by them themselves; But they have different feelings about those unjust laws. If people want to have a sense of responsibility for the law, then the law must be as consistent as possible with justice. " [16] That is to say, only "good laws" can be universally obeyed, which is in line with Aristotle's theory of rule of law. The just law advocated by tanning is embodied in the following aspects: First, it conforms to the principle of natural justice. Natural justice is the most basic law in western society, and [17] is also the most basic constitutional principle adopted by British courts, which is legally applicable to all cases. It includes that the judge must not take sides in the trial and must give the defendant full rights of defense and appeal. In Tanning's view, "there is no doubt that if a referee fails to abide by the laws of natural justice or is biased, his judgment is invalid;" And this effect can be achieved by canceling the volume adjustment command or declaring it invalid. " [18] For example, in the case of Kanda v. Malayan government, Tanning pointed out that the law against favoritism and the right of appeal are often called the basic features of natural justice, and they are a pair of pillars supporting natural justice. The Romans used nemo judex in causasua and Audi alteram par-tem to say that "no judge ad litem shall be partial", and now they often use these two words to express justice and fairness. Denning pointed out, "In every case, whether you adopt Roman equity controlled by consul or English equity controlled by justice, equity will put forward the principle of natural justice. Equity claims that these principles are superior to all laws that existed at that time. Therefore, we should turn to these principles to reduce the severity of the law and soften the rigidity of the law. "[19] In the history of legal thought, the common concepts of fairness and justice are often associated with natural law, especially in the early stage of human development." Natural law is often understood as a complete and ready-made rule system that meets the requirements of justice, regardless of whether they are formally expressed in a country's positive law. " [20] In addition, "the rule of natural justice is to ensure that the legal order is maintained fairly and regularly. "[2 1] Of course, English equity can best reflect the spirit of justice. It follows the basic principle of fairness and reasonableness, and tries cases that are not accepted by ordinary courts. The principles of fairness and natural justice are consistent.
Secondly, in Denning's view, "justice" is the spiritual core of the Constitution. This spirit "is rooted in the innate instinct of pursuing justice, which leads us to believe what is right and what is wrong, which is the real foundation of society." [22] is an atmosphere formed by our long-term experience and tradition, which can be felt but not seen; I can feel it, but I can't learn. For example, in William Rufus Hall, Bacon got a fair trial and Summers got a fair pardon. In this hall, Charlie calmly faced the High Court and saved his reputation ... This is not his intellectual product, but his spiritual product. Religion focuses on human spirit, and only with spirit can people realize what justice is. [23] It is not difficult to judge that Tan Ning emphasized that "justice" is the core quality of law and the guiding ideology of legislation and judicature. Just as Rawls' justice is first applied to institutional justice, fairness and justice are the virtues that institutions should have in particular.
Thirdly, Denning believes that English common law should contain the spirit of justice and embody the concept of justice. In the early years, Justice Kirk once said: "If the bill of Congress contradicts justice and axiom, or is not coordinated, or cannot be implemented, then the common law will control and rule that the bill is invalid." [24] In other words, if the law violates the spirit of justice and fairness, it must be abolished. On the one hand, "English common law is described as a' rational man', who cares about the safety of others as much as his own. This excellent but annoying figure is like a monument in our fair court. He vainly asked his compatriots to follow his example to set their own lives ... "[25] Britain" The common law has many principles that show justice and good feelings, which are beneficial to people of all nationalities and colors all over the world. [26] As British scholars Richard Clayton and Hugh Thomson said, in common law, "nemo judex in causasua"-no one can be a judge in his own case-should listen to the other party's statements and opinions. " [27] For a long time, both of them have been regarded as the minimum principles of a fair trial.
Thirdly, the law of justice that Denning thinks must be constantly updated. Denning pointed out: "The law should be amended to ensure justice, or as close as possible to justice." [28] The law should be constantly updated to conform to the spirit of justice and meet the needs of fair justice. "/kloc-the legal principles established by judges in the 0/9th century-although suitable for the social situation at that time-are not suitable for the social needs and opinions of the 20th century ..."; "It must be remembered that no matter when a law is put forward for deliberation, people have no ability to foresee all kinds of situations that may occur in real life." [29] Of course, this task is mostly done by judges. Denning believes that in the process of hearing and judging cases, judges should create the principle of just judging cases in line with the pace of life with the changes of society and the development of the times. He often speaks in the House of Lords, pointing out that in order to realize the justice of the law, creative interpretation of the law is needed. With the change of social life, the law must be updated, otherwise it will be difficult to embody justice.
Finally, legal provisions must be combined with the concept of justice in the application process. According to the view of Thomas Wolsey, a famous judge in British history, in some cases, it is necessary to leave the legal text to pursue the content required by reason and justice and the original intention of justice. In other words, reduce and soften the cruelty of the law. Wolsey presided over the Grand Court for 65,438+04 years. He always abides by the rules and punctuality in court trials and has made outstanding contributions to the realization of judicial justice. His judgment is considered fair and reasonable, and his judicial work enjoys a high reputation. Denning believes that these are mainly due to wolsey's insistence on the principle of legal justice. In his judicial career, Tanning followed wolsey's example, insisted on legal justice and made unremitting efforts to achieve judicial justice. Lord Denning witnessed the development of English law in his long legal work. 1984, he mentioned in the book "Boundary Monument of Law": "It can be said that during my tenure, the court rediscovered a new equity law. It is fair, reasonable and flexible, but' unlike a judge's foot' is fickle, which is a great achievement. " [3 1] In fact, in any legal system, the public has a basic expectation for a judge who plays the role of "upholding justice" in the judicial process, that is, when he uses the power of the public to balance those conflicting interests, the interests of both parties to the dispute should neither be more than what they "deserve" nor more than what they "deserve". [32] As scholars have said, "judicial justice is a kind of justice within the law, which means that it exists in the form of legitimacy, and it also means that it is justice in the sense of institutional ethics with legal nature." 〔33〕
In a word, during his long career, Lord Denning made outstanding contributions to the justice of English law. Justice is a process of applying the law, and its fairness depends on the fairness of applying the law first. If the law itself is unfair, then the judicial application of the law, no matter how accurate, scientific and brilliant, can only lead to an unfair result. [34] Therefore, as a legal profession, only under the premise of pursuing legal justice can the fairness of the profession itself be realized. No matter whether lawyers or judges pursue and realize justice, they should always proceed from legal justice.
Third, the lawyer's justice-the power of judicial justice
In Britain, lawyers and judges, as the main bodies of the legal profession, not only faithfully perform different duties entrusted by the law, but also pursue the realization of judicial fairness and justice and ensure judicial fairness and social order, which play an important role in the judicial system. Therefore, in Britain, lawyers are "elite professional classes, with high social status, generous remuneration and treatment, and are at the core of applicable laws." It can be said that British lawyers are followers of judicial justice. In Tannin's mind, it is the bounden duty of lawyers to pursue and realize justice. Undoubtedly, lawyer's justice is an important force to realize judicial justice.
Because of the love and yearning for law since childhood, [36] let Daning turn his attention to the legal field again when he chose a career after graduating from 1920 university-to be a lawyer. 192 1 10 In June, he returned to Magdalene College again, picked up his law textbook and began to study law. Later, Tan Ning entered Lincoln Law School again, and began his legal career as an intern in the law firm from June 1922 to June 10. Here, Tannin received further professional training and his thoughts became more mature. In the center of the library of Lincoln Law School, there is a statue of Thomas Erskine, the greatest defense lawyer at that time. In his career as a lawyer, Thomas Erskine always took justice as his goal. He has a famous saying: "I will always spare no effort to safeguard the dignity, independence and integrity of British lawyers." Without these selfless justice-the most valuable part of English law-it cannot exist. " [37] This famous saying of Thomas Erskine, which Tanning keeps in mind, is often repeated to his students. It can be seen that Thomas Erskine's justice thought as a lawyer has a deep touch on tanning. In his lawyer career of more than 20 years [38], Tan Ning has always adhered to the principle of justice and strived for judicial justice.
First of all, tanning advocates that lawyers should pursue justice with their own ideas and make unremitting efforts for this. "Just as scientists seek truth, lawyers should also seek justice; Just as scientists draw their general propositions through many examples, lawyers should also establish their general principles through many precedents; Just as scientists modify their propositions when they find that their propositions are not suitable for all situations, or they have to completely abandon their propositions when they find that their propositions are wrong, lawyers should also modify their principles when they find that their principles are not suitable for all situations, or abandon their principles when they find that their principles will lead to unfair conclusions. " [39] In Tan Ning's view, only in this way can lawyers contribute to the realization of judicial justice and social justice. Concept determines action, and only by establishing a sense of fairness and justice in concept can it be truly manifested in action. To this end, Tan Ning also criticized some lawyers' one-sided dependence on laws and regulations while ignoring justice, pointing out that for some lawyers, laws and regulations are everything, and correctness is not important. They often chew on words and ignore the essence of legal provisions. They scrutinize the words repeatedly, and then dare not cross the line in their use. The meaning of words is a legal matter for them, not an ordinary person's matter. Those lawyers who have a sense of responsibility to society should do their best to explore and make the principles of law consistent with justice. If he can't do this, he will lose the trust of the people, the law will be discredited and the stability of the country will be shaken. [40] He compared some lawyers who "only care about what the law is in fact, not what it should be" to "masons who only know how to build bricks and are not responsible for the houses they built". [4 1] This metaphor appropriately criticizes those who only know the case itself, regardless of the fairness of the case, and emphasizes that lawyers should pay attention to the spirit of justice behind the case they handle.
Secondly, Daning believes that lawyers should keep learning, and only when they are professional can they practice fairly. Lawyer is a kind of freelancer who relies on his own legal knowledge and skills to serve the public. In common law countries, lawyers, like judges, should use their own experience and skills to interpret written laws and find the most similar cases to apply when participating in judicial practice. They need to carefully scrutinize and identify the case through their own knowledge, litigation experience and long-term judgment, so as to handle the case fairly. Tannin deeply understood this point, and he pointed out: "There is no doubt that the task of lawyers-and also the task of judges-(explaining the written law) is to find out the intention of Congress (in line with the spirit of justice). Of course, when looking for the intention of Congress, we must start with the words used in the written law. " [42] For lawyers involved in litigation, we must follow the judge's precedent in the overall sense of litigation to grasp the true meaning of law application, that is, by carefully studying the judge's application of precedent, try to find out the precedent that is most similar to the facts and nature of this case, quote the most favorable application to this case, and persuade the judge to make a judgment that is beneficial to the parties to this case and conforms to the spirit of justice. So, "when I was a lawyer, I spent a lot of time in the library-just like students now." After becoming a lawyer, I still spent a lot of time looking for cases there. "[43] So much so that Daning thinks that lawyers are the most diligent among all professionals, and only by continuous learning can they have the conditions for fair practice.
In the early days of his lawyer career, Tanning worked as a lawyer, participated in the editing of Smith's case, and regularly went to the Circuit Courts in Winchester and Exeter to hear and decide "the cause of action related to justice". In this way, shortly after he became a new lawyer on 15, he was awarded the title of "Queen's Counsel" for his outstanding performance. 1April 7, 938, he put on a brocade robe and began to serve as a royal counselor. At this time, Daning worked harder, achieved outstanding results and won praise: "There was a lawyer who was an outstanding person, cautious and smart ... Because of his knowledge and reputation, he received many tips and clothes, and no one was busier than him. Recently, he has been getting busier and busier. Since William I, he remembers every bill clearly, and he can recite every decree word for word. " [44] It can be said that superb professional knowledge and skills provide a guarantee for the promotion of Daning's professional status and the establishment of his reputation. More importantly, it cleared the way for his fair practice and judicial justice.
Thirdly, Tan Ning advocates that lawyers should adhere to legal justice in the process of serving clients, and should not safeguard the interests of clients without principle. In English courts, lawyers should, in principle, state what they know about the cases they accept, even if these cases are not conducive to the parties. Some scholars believe that this practice mainly stems from the idea that lawyers should not only protect the interests of the parties in court, but also help the court find the truth of the case according to the principle of justice, so as to realize judicial justice. [45] In this sense, it is not difficult to infer that lawyer justice is an important force to realize judicial justice.
It is worth mentioning that lawyers also guarantee justice for vulnerable groups through legal aid. Denning pointed out, "I often say that since the Second World War, the most important revolution in the legal field is legal aid." The early lawyers' legal aid in Britain was motivated by charity, and it was a lawyer's conscience and moral obligation to provide free legal help to poor clients. With the development of capitalist system and the spread of human rights concept, legal aid has become a political responsibility of the state. After World War II, the economic development and political changes of capitalism made the social standard idea become the mainstream, and legal aid became the obligation of the state to guarantee the real equality between the parties, emphasizing equality before the law and realizing the ideal and goal of fairness and justice in an all-round way. Legal aid advocated by Daning coincides with this trend, and it is also one of the ways for lawyers to realize judicial justice.
Third, "Justice is justice related to institutional factors." [47] Under the advocacy of jurists such as Denning, Britain has gradually established a system of lawyers to ensure the fairness of lawyers. Specifically, British lawyers have the following obligations: first, they have the obligation to maintain professional independence, free from interference from other organizations and individuals, and must practice independently; Second, the obligation to maintain professional reputation, not to advertise or solicit business; Third, loyalty to customers must not deceive customers; Fourth, be loyal to the court. If the client's specific requirements conflict with the defense lawyer's obligations to the court, "the defense lawyer must ignore this, otherwise he will bear the responsibility." [48] These obligations provide an institutional guarantee for lawyers to practice fairly and realize justice, so that lawyers "as the general public knows, the naming of lawyers is a model of honesty and nobility". Moreover, in the professional consciousness of British lawyers, any pursuit of economic interests or interests dominated by clients at the expense of their independent status or principles is a stain on their sacred duties. The lawyers who appeared in court claimed that they did not represent any party when they appeared in court, and they were performing the "lofty duty" of independent defense. [50] It can be seen that lawyer justice is an important force and guarantee to realize judicial justice.