On The Limits Of Adjudication

The thesis is mainly about the proper limits of adjudication to protect its institutional integrity and institutional autonomy.The purpose of the thesis lies not only in finding a proper point between the theories of judicial activism and judicial restraint,but in in quest of adjudication itself in terms of the new institutional theory and from the view of institutional arrangements.Thus,we can find out appropriate answers about how to identify the limitations of adjudication.The new institutional theory justifies the questions of what constitute the basis of institutional separation and how the relationship of all kinds of institutions should be,more over,the constitution of a normative concept of judiciary is based on the theory,that's to say,it provides some kind of reference points or standards for these questions,such as what's the institutional ownership of judiciary and on what sense do we talk about judiciary.We must reclaim the institutional dimension of judiciary,thus,judiciary can be viewed as a specific institution,and the legitimation of the institution lies in that it is the main institution,which guarantees personal self-determination and makes it different from other institutions,such as legislative and administrative institutions.Judiciary has its limitations.The sources of the limitations are neither from the limits of regulations of law,which constitutes the limits of law application on the premise of the dichotomy of ‘rule-making' and ‘rule-application',nor from the complexity of right itself.Instead,these limits come out of the internal requests of the legitimacy of the institution.Based on institutional theory,the heart of the problem lies in how to determine the border of judiciary from the legitimacy viewpoint to protect its integrity and autonomy.Thus,the key point of the limits of judiciary lies in determining the integrity and unique characters of judiciary in terms of the logic of appropriateness,but not logic of consequence,and in making clear what is the proper role of adjudication in institutional structures and what kinds of questions or social tasks are(not)suited for adjudication.The question of justiciability constitutes a part of the question of limits of adjudication,and it refers to the nature of certain matter that is suitable for adjudication.The essence of the question is to presuppose certain examples of prudential institutional restraints.There should be some questions that should not be considered by judiciary on the basis of institutional legitimacy and institutional limitations.To be specific,there should be an attitude of prudence and self-restraint concerning the justiciability of ‘polycentric tasks' and ‘social-economic rights'.The Fuller(ian)polycentric tasks are not suitable for adjudication,and we should develop ‘open remedies model' as to the justiciability of social-economic rights,that is,by showing ‘passive virtues',we make space for other institutions.The selection of judicial standards also is important,and we never come to a point on this question.The difference of all kinds of theories derives from the question of whether judges are duty bound to judge by rules.In general,the judges have obligation to judge by rules,not because of the procedural rules and the prudential reasons and other moral reasons,but because of the consideration of institutional legitimacy and institutional limitations.However,the judicial obligation does not suggest that judges cannot deviate from rules on occasions,but means that deviation must be down under close restraint,that is,deviation must be justified,and it is only allowed in the application of sub-optional rules,it must be authorized by laws as well.If law application is the main task of adjudication,law interpretation is important to the question of the limits of adjudication.Both the approaches of formalism interpretation and Dworkin's interpretation on the base of ‘integrity law' are defected in someway.An intermediate approach is practicable,and it must be under some constraints,which makes it fit in the Fuller(ian)“structural integrity”,that is,it should take some external value into consideration and think less of the factor of ‘policy'.The question of the ‘limits of limits of adjudication' is also an indispensable part of the thesis.Because of passive influence may be caused by enforcing judicial limitations,and of the internal demands of institutional legitimacy,it is necessary to provide minimalist protection for limited adjudication.By doing this,the conception of “judicial incompetence” can be weakened.The baseline of the limits of adjudication demands that it is prohibited to refuse of justice on account of its limitations,and it must be engaged in the institutional interaction in a minimal sense,that is,judiciary should do what it can to protect self-determination in legislative process when the transformation from self-determination to collective-determination get cut off.As to the limits of adjudication in the context of China,both normative and practical perspectives are needed,and we should look for a balance between them.The judicial system is the weakest institution in traditional China,for example,judicial power is always subjected to imperator's power,which is a kind of administrative power in nature,and the boarders between judicial system and other institutions are not clear.In addition,the idea of‘people's adjudication'developed from the revolutionary base period has influenced and continues to influence the development of judicial system in China.This idea has led to a lot of problems and defects,such as the insufficient institutionalization of judiciary,as well as its overloaded tasks and functional activism.These problems and the unstable relationship between judicial system and other institutions altogether led to the special tasks of analysis the limits of adjudication,that is,reconstruction of judicial institution by emphasizing the limits of adjudication and relieve judicial system from great pressure.It is possible to reconstruct the idea of ‘people's adjudication' in terms of institutional theory,and measures include: turning the model from mandatory judicial system to authoritative judiciary,as well as developing and improving judicial autonomy,and reclaiming the importance of judicial procedure and respecting the institutional limits of adjudication.