A Dialectical Analysis Of Politics And Rule Of Law In Contemporary China's Judicial Field

The relationship between politics and the rule of law is the core issue of legal politics,and the relationship between politics and the rule of law in the judicial field is an important aspect of this core issue.In the new stage of comprehensively promoting governing the country by law and comprehensively deepening the judicial reform,we must strengthen the study about the relationship between politics and the rule of law in the judicial field,or in other words,in the judicial theory and practice,and provide thinking and viewpoints in legal politics for the construction of socialist judicial system with Chinese characteristics.Since the Eighteenth National Congress of the Communist Party of China,China has embarked on a new journey to comprehensively promote governing the country by law as socialism with Chinese characteristics enters a new era.The reform of judicial system is an important breakthrough and handle in promoting the law-based governance.Before that,since the 1990 s,China's judicial reform movement has been going on for nearly 30 years.The target of the reform has changed from the initial trial mode mainly including the litigation procedure and evidence rules to the internal management of courts,and then to the deep-seated system and mechanism of judicial system.The judicial reform movement has been promoted from point to point,and has made many achievements.However,it is undeniable that there are still gaps between the reform discourse and the practice in the actual judicial system,between ideal and reality.And besides,some reform measures are not implemented effectively,leading to a "strange circle" of going and returning back in the judicial reform in China.In addition,the occurrence of some cases of judicial injustice and mistrials also exposes the problem that the localization and administration of justice in China for a long time.At present,the reform of judicial system has entered a difficult "deep water area",which requires "biting the hard bone".It cannot meet the goal of achieving judicial justice only by relying on the technical reform within the judicial system.The institutional and institutional obstacles that restrict judicial capacity and affect judicial justice must be removed,which means the relationship between politics and the rule of law in the judicial system should be considered and handled with dialectical thinking.This is a prerequisite and foundation for deepening the judicial reform However,there are some deficiencies in the understanding and research of this issue,such as unclear basic concepts,unclear theoretical positions,complex and sensitive themes,contradictions between China and the West,and even to some extent,this issue itself has been politicized,resulting in two extreme and one-sided cognitive tendencies of "pan-politicized" instrumentalism and "de-politicized" formalism.At the same time,it also exposes the dilemma of insufficient theoretical preparation for the reform of judicial system in China.Therefore,from the perspective of politics of law,this paper attempts to use the research theories and methods of politics and law comprehensively,and to explore this issue from three levels of epistemology,ontology and dialectics.As a fundational research premise to clarify the relationship between politics and the rule of law in judicature,we should first clarify the scientific connotations of "politics","rule of law" and "judicature" at the epistemological level.Politics,rule of law and judicature are rich and ambiguous concepts.To some extent,the disputes of various theories or views on the relationship between politics and rule of law in judicature are based on different understandings of judicature,rule of law and politics.Based on this,the author defines the “judicature” discussed in this paper as the trial and adjudication activities of the courts,limit the judicial organ to the people's court,and limit the judicial authority to the judicial power and the corresponding executive power of the court.Also,a comprehensive analysis of the connotation of the concepts of “politics” and the “rule by law” was made by means of semantic analysis.It is determined that the understanding of politics in the judicial field is to give consideration to its prescriptions as objective facts at the empirical level and its value purposiveness at the normative level,so as to break down two extreme cognitive tendencies: the politics is understood as either an ideal "utopia" or tactics.For the rule of law in the judiciary,we choose the rule of law as an analytical concept,which includes the substantive rule of law and the formal rule of law and emphasize on a procedural or formal understanding of the rule of law.It is the theoretical basis for analyzing the relationship between politics and rule of law in judicial practice that to rationally understand the essential attribute and function of judicature in ontological level.In the ontological sense,modern judicature is not only the existence of a way of judgment,but also a special power carrier.As a way of adjudication,the judicial connotation is to follow the established legal rules and procedures to make a fair judgment,with legal,neutral,procedural,professional,rational nature of the rule of law,exerting the function of the rule of law including the settlement of disputes,the application and interpretation of the law,relief rights,seeking individual justice.As judicial power carrier,it is part of the national political power and political system,which both reflects and follows certain value orientation,and relies on the state coercive power to ensure implementation.Also,it has the political attribute including independence,passivity,finality,policy,national significance and exerting the political function of maintaining social order,making public policy,checking and balancing political power,and safeguarding and promoting regime legitimacy.The dual attributes and dual function of politics and rule of law determines that tension relationship between politics and the rule of law exists inevitably in the judicial practice.The logical inevitability is that the biggest paradox in the judiciary itself is the conflicts between the "logic of rule by law" which should be followed as a referee and the "political logic" of a branch of government acting as a judicial officer.How the courts and judges,as part of the state power,can truly maintain their neutral nature of rule of law and at the same time form restrictions on other political powers has become a key issue in the judicial history.The relationship between politics and the rule of law in the judicial field is not only a theoretical problem,but also a practical problem prevalent in all countries of the world,and has its own unique manifestations in different countries.Under the background that party politics has become the basic manifestation of modern democratic politics and constitutes the inevitably leading influencing factors in the establishment and operation of the national rule of law and the judicial system,the relationship between party politics and justice,that is,the relationship between party politics and independent trial,and the relationship between Party policies and national laws constitute the core issues of the relationship between politics and the rule of law in the judicial field.Through the comparative analysis of the relationship between political parties and judicial "Party Division" under different political parties and political systems,the author believes that there is a tension law relationship between political parties and independent trial in the judicial field,which is mutually exclusive and tractive.This tension is common and normal,but the party's influence on justice is not boundless.The party plays a role on the premise of ensuring the realization of judicial independence,so as to keep the tension between the two in balance.Otherwise,as the point of force of the two kinds of traction,the judiciary will be distorted,deformed or even broken.Though the relationship between political party politics and judicial independence in different countries has some commonalities,but the concrete forms of tension,such as the way of influence of Party politics,the degree of realization of judicial independence and the interaction between them,will have their own personality in their respective practice.In contemporary China,the relationship between Party leadership and independent trial is undoubtedly an important part of the relationship between politics and the rule of law in judicial practice.The Party's leadership constitutes the political principle that the judiciary should uphold,while the independent trial is the rule of law principle that the judicial operation should follow.Since the founding of New China,the relationship between the Party and the judiciary(referred to as "the relationship between the Party and the Division")has gone through three stages and presented three modes.In the early days of the founding of New China,under the background of "class struggle" the "model of politics and law" manifested itself in the indiscriminate division of Party laws,the domination or substitution of laws by Party policies,the examination and approval of judicial cases by Party committees,and even the personal expression of law by those in power.After the reform and opening-up,under the background of ruling the country by law,the "model of law and politics" has manifested itself as the Communist Party of China,as the leading Party and ruling party,ruling the country by law and leading the people by law,respecting and supporting the people's courts to exercise judicial power independently according to law.Especially with the formation of socialist legal system with Chinese characteristics,law rather than policy has become the basis of court trial activities.After the Eighteenth National Congress of the Communist Party of China,the rational balance between "political and legal model" and "legal and political model" under the background of socialism with Chinese characteristics entering a new era,which is a new model establishing a new type of "Party-Division Relations" and promoting of rational balance between the political-legal model and the legal-political model in view of the painful lessons of distorting the leadership of the Party and denying independent trial,unilaterally emphasizing "judicial independence" under the legal and political model,weakening the leadership of the Party,and canceling the legal status and value.Specifically,it emphasizes the absolute leadership of the Party in political and legal work and the guiding role of the Party's policies.The people's courts must ensure the effective implementation of policies and laws,and the implementation of socialist core values in judicial activities.At the same time,they must vigorously promote the reform of the judicial system,ensure that the people's courts of witnesses exercise judicial power independently and impartially in accordance with the law,and organically integrate political principles with the rule of law We should strive to achieve the consistency of the legal,political and social effects of judicial cases.Under the leadership of the Party,deepening the reform of the judicial system in an all-round way is the only way to build a new model of the relationship between politics and the rule of law in the judicial field.The new round of judicial system reform is the convergence of two main points.First,the leadership of the Party should be run through all aspects of the judicial field and the whole process of judicial work to ensure that the Party's line,principles and policies are fully implemented in judicial trial practice.Secondly,we should improve the Party's leadership,lead and support the administration of justice with the concept of rule of law,the thinking of rule of law and the way of rule of law,so as to create good political and legal conditions for the independent and impartial implementation of judicial power according to law.The convergence of the two focuses reflects the rational balance between the political and legal models,which is conducive not only to improving the absoluteness and credibility of the Party's judicial leadership,but also to improving the authority and credibility of the judiciary.Therefore,it can be seen that the leadership of the Party and the independent trial are not the zero-sum game relationship of "what you get is what you lose for me",but the dialectical and unified win-win relationship.