Effectiveness Of Judicial Decisions

This thesis is in the academic research background that the legislation of lawturned to the judicial law, in the legal life backgrounds that the courts, judges andhard cases become the focus in the society, through the study of the validity ofjudicial decisions, to provide useful reference to judges to conduct judicial decisions.Just as Dworkin had once said:“the courts are the capital of law’s empire, and judgesare its princes, but not its seers and prophets.” While the courts and judges andjudicial decisions are mainly linked to one another, which fully shows that judicialdecisions is important to the rule of law, research judicial decisions is important to thelegal theory.In this thesis, from the two dimensions of the facto validity and normativevalidity, discuss the validity of judicial decisions. I intend to bring integratedequilibrium between justice and stability, certainty and accuracy, predictability andacceptability, to form the full understanding of judicial decisions. This study draws onforeign Hart, Dworkin, Habermas, Larenz as the representatives of various schools oflegal theory, national doctrine laws and expensive moralism, judicial conservatismand judicial activism, attach importance to the positive analysis about case. Thestudies are wide-ranging variety of opposing views without preconceived notions, orfavoritism, and avoid one-sidedness.This paper includes introduction, the main part of four chapters and epilogue.In the introductory section, first propose to the problem of this thesis: Judicialbecome a focus of the study of law, so the research of judicial determination validityhas the era meaning; modern judicial decisions required by law at the same time bothcertainty and correctness, and these are the two dimensions validity of norms andfacts in judicial decision; current judicial decisions in our country is facing a moreserious problem of “validity”, this situation also raised to theoretical research on thevalidity of judicial decisions by the practical requirements. Then, I give a generalaccount of Hart, Dworkin, Habermas theory of the validity of judicial decisions, toshow the theoretical source of this article. The next, I put forward the path of thisresearch. Finally, based on the characteristics of law and the purport of this research,describes the main research methods of this paper: Pragmatic analysis, reflectiveequilibrium method and positive analysis.The first chapter describes the basis theoretical knowledge of the judicialdecision validity, this intend to pave the way for further research and preparation.First define the concept of justice, justice is the essence of referee, referee is divided into four parts: decisions, ruling, judgments and orders. Decision is based on strictprocedures to give judge to the parties directly involved in the substantive rights andobligations, is the most influential in these four Referee form, for the concentration ofthis study, the subject of this paper is decision instead of referee. Then introduced the"validity" concept, in English, the “validity” can refer to both practical effect andvalid reason, from the purport of this article theoretical point of view, the “validity”is more inclusive, so this article is entitled “Study on the validity of judicialdecisions”. Finally, by the validity of the theory of judicial decisions, I give a morecomprehensive exposition of Hart’s positivism, Dworkin new natural law theory,Habermas legal discourse. I also according to Hume’s problem to analyze why thereare the two dimensions validity of fact and norms in the judicial decisions.The second chapter studies the facto validity of judicial decisions, also thecertainty of judicial decisions. Such certainty is reflected in: the court is the onlyorgan which has the authority of jurisdiction; referees have been identified as thebasis for laws and regulations, if the law norms conflict, the supremacy of theConstitution, laws above the regulations, administrative regulations above localregulations. Judge apply the judicial syllogism, give the certain legal norms to certainfacts and so has the certain consequences of judicial decisions, this have “form” canbe seen, the “track” to follow, the “quantity” can be counted, the “fruit” canbe measured, the conclusions has the certainty,that is the validity of the facts. Thischapter firstly study the premise of the judicial syllogism, discussed the source of thepremise, the relationship between the premise and the minor premise, the validity ofpremise and its constitution. Then study the judicial syllogism minor premise,according to the essence of case facts and context to give the nature to case facts.Finally to study the certainty of decisions conclusion, criticizing “prediction theory”which harm the certainty, to affirm Hart’s “internal perspective” which protect thecertainty, the judge should be required by law rather than their own will to give theconsequences to the parties.The third chapter studies normative validity of judicial decisions, that is, thecorrectness of judicial decisions. Normative validity has no seen“form”, no followed“tracks”,no counted“quantity”and no measured“fruit”. The normative validityhas not the objectivity as facto validity, it direct to essence rather than form. Modernlaw is fundamentally protection of the rights of citizens, it obtains respect andobservance of citizens by its legitimacy and correctness, normative validity is the souland govern facto validity. From the following three perspectives, this chapter will discuss the normative validity of judicial decisions. Firstly, I distinguish the applyingmodel of judicial syllogism: conception subsumtion and type classification, typeclassification contains value judgments and concern for the correctness of judicialdecisions. Then discuss how to transform the role of speaker and listener one another,according to Habermas discourse theory, only subject to such role reversal thatjudicial decisions have the acceptability. Finally by the use of Dworkin’s theory oflegal principles, to discuss when the regulation has been exhausted, to apply legalprinciples to ensure the correctness of judicial decisions, also to analyze the failure oflegal principles applying from academic analysis.The fourth chapter studies the methodological validity of judicial decisions. Thischapter include two parts: Firstly, study a method of legal discovery, to analyze thetheory of gains and losses that concept law, legal positivism, legal realism, overalllegal theory to solve the problem of hard case, from the academic to discuss that“hidden law” is the new path to resolve the tension between uncertainties and thecorrectness in judicial decisions, to clarify the distinction between“hidden law"”anddiscretion, the legal principle. The second part discuss a kind of legal reasoning, legalpragmatic reasoning has the following character: the context dependence; under thecontext to modify the major premise; reasoning process is not universal;“inter-subjectivity” legal type. The way of thinking is demonstrating, the value oflegal pragmatic reasoning is: to make up for shortcoming that formal reasoning ignorethe rational acceptability of judicial decisions, and strengthen the legitimacy ofjudicial decisions.Epilogue will summarizes the text and propose findings: the validity of judicialdecisions focuses on balancing art and the reasoning art. Balancing art is balance inthe two dimensions of the between facto validity and normative validity, facto validityhas a priority while normative validity has the governing, both has the sameimportant position, without emphasizing one at the expense of the other party.Concerning about the normative validity leads to new legal rules and reestablish thefacto validity of judicial decisions, which achieves balance between static anddynamic. Reasoning art lies in the following:“reason takes precedence over theconclusions”is the request of modern rule of law, reasoning arts is essential tomaintain the validity of judicial decisions, we have the attitude about reasoning arts asfollowing:“diligent to do something” rather than“Politely keep somebody at arm’s length”.