Shift In Judicial Paradigm In Smart Society

This paper aims to study the shift in judicial paradigm in smart society by probing into the transformation of the rule of law paradigm."Judicial paradigm" is the default judicial logic and value endorsed by the judges.The shift in Judicial paradigm is inextricably related to the change of the rule of law paradigm,as the latter reflects people's general views on the society where the legal system operates,and also because those views provide insight into people's legislative practice and judicial practice.Therefore,in the context of the rule of law paradigm,this paper examines the modern judicial paradigm by exploring its basic connotation,its evolution,its challenges brought by the information age and its development trend,and puts forward the concept of judicial paradigm for the smart society.Excluding the introduction and conclusion,this paper is divided into four chapters.The introduction first offers an overview of the global research status on the transformation of judicial paradigm of smart society,and then covers the reasons for choosing this topic,and introduces the research ideas,research methods and possible innovations.The conclusion expounds on the transformation strategies for smart justice and China's justice,and holds that smart justice is an inevitable choice for the national strategic development and an opportunity through which the transformation and innovation of the legal system could take place.However,it also points out that the application of technology to judicial field must be properly handled within the boundary of the rule of law.The main body is as follows:The first chapter defines the modern connotation of the judicial paradigm,examines the evolution of the modern judicial paradigm and puts forward the logic clues of the evolution of judicial paradigm.After reviewing and analyzing the context of the rule of law in the judicial paradigm,this chapter holds that the modern connotation of the judicial paradigm includes three aspects: one is the judicial judgment of the judge formulated on the basis of cases and applicable laws;the other is the logical and rational judicial reasoning;the third is the just judicial procedure independent of the judicial results.While exploring the modern connotation of judicial paradigm,this chapter defines and expounds on the characteristics and specific connotation of three judicial paradigms,namely,formal justice,substantive justice and consultative justice,which are applied respectively to the three stages that western society has gone through during its modernization,namely,free competition stage,welfare state stage and secure state stage.The formal justice of liberalism paradigm is characterized by its obedience to the rules of positive law,which relies on the independent judicial authority to solve specific conflicts through strict legal reasoning.Its background is that the legal paradigm of liberalism is based on formal rationality,and its system is structured by the assumption of rational economic man and the belief in the supremacy of the rule.The generalization of law means that the judiciary need to find the reasons of "decisive significance" in the universal legal principles or rules,and make judicial decisions with rigorous and accurate logical methods.The substantive justice of the welfare state rule of law is characterized by purpose-oriented reasoning,which expands the discretionary power of the judicial department,and further makes the judicial power more and more involved in the formation of government policies.The focus of the judicial process also shifted from formal justice to substantive justice.Its background is that the concentration of production and capital under free competition strengthens the power of monopoly capital,increasing the inequality of economic power,material property and social conditions.The separation between the state and society,politics and law brought by the rule of law of liberalism was fixed in another way,and with that,the substantive law of welfare state begins to graduallyguide the social role and social status,and manifested itself as a combination of legal judgment and moral judgment.The deliberative justice of procedural rule of law is characterized by the judicial procedure guaranteed by communication,which is manifested in the establishment of equal and free environment for dialogue,which was used to promote consultation and communication among judicial subjects so as to reach a consensus.Its background lies in the fact that the legal structure and bureaucratic structure are difficult to cope with the social complex situation caused by the intensive state intervention,and the protection of rights for substantive equality also infringes the realization of individual autonomy to a certain extent,which makes the law and justice turn to realize social integration through organizational norms and procedural norms.The evolution power of judicial paradigm,on the one hand,comes from the change of external social conditions.The new social structure and organizational principles are absorbed into the basic legal structure through institutionalization,and then affect the value orientation of justice.On the other hand,it comes from the internal reflection of judicial practice.The judicial system is constantly explores in practice how to better promote the realization of judicial justice through the use of methods and the design of system.In the second chapter,the challenge posed by informatization to judicial paradigm is examined.The arrival of the information age is changing the traditional social structure and organizational principles.The combination of computer,Internet and big data not only shakes the importance rational thinking has held in terms of knowledge production and power structure since modern times,but also impacts the modern legal order which claims to champion freedom and truth.In this process,justice,being an organic part of the rule of law system,as well as being a sensitive display of micro social conflicts and disputes and an early warning machine supervising the social governance status,is the first to feel the impact of the collision and friction between social informatization and construction rationality,which leads to three challenges that modern judicial paradigm faces in the age of information: one is the impact brought about by the dual space to the existing judicial rules and fields;the other isthe encroachment on the centrality of national law and the supremacy of justice by platform governance;the third is the challenge brought by intelligent justice to the modern judicial concept based on legal professional knowledge.The third chapter analyzes the trend for judicial paradigm to become more intelligent.With the deepening of social analysis by technology,the judicial concept and judicial system developed in physical time and space can not cope with the high-speed digital process of "the grandlar society",and the new knowledge force is becoming more and more deeply involved in the operation of judicial power.In terms of judicial rules,substantive rules and procedural rules have been transformed into computerized expressions,and sometimes rules are even generated by code,effectively making the rules the result of algorithm and program design.In terms of judicial adjudication,the intelligent system provides "customized" evidence guidance,case push,evaluation and prediction for all kinds of cases,making the judicial result more continuous,consistent and predictable.The computer model thinking gradually enters into judicial activities and judicial actions.In terms of judicial process,the field of judicial operation gradually changes from the “square-and-theater-like” physical space to the multi-dimensional space of remote trial,human-computer interaction and personalized customization,and the judicial process presents the scene development trend of the combination of virtuality and reality.In terms of judicial service,relying on the litigation service platform,the personalized litigation guidance with precise positioning and intelligent prediction increases the stickiness between the public and the judicial department,and provides an intelligent "access to justice" for the information society.At the same time,in the combination of new technological forces and judicial power,judicial operation points to an open and panoramic intelligent control mechanism that can accurately identify different scenes of bitterness and happiness.We need to explore and envisage the judicial paradigm in the new rule of law paradigm.The fourth chapter puts forward the judicial paradigm for the smart society.The research of modern rule of law paradigm is essentially linked with the transformationof modern society in that the transformation of judicial paradigm reflects social changes.This chapter absorbs the reflective elements of modern rule of law theory,and links it with the reflective theory of sociology.It puts forward the notion of post-modern intelligent rule of law paradigm by interpreting both the law and the social characteristics with a “double hermennutic”,and shapes the form of judicial paradigm in this new rule of law paradigm.First,we should inject the connotation of digital justice into the judicial value in the era of information so that it can reflect the information and symbolic thinking and behavior of the information society.Second,we should be fully aware of the collaborative relationship between human brain decision-making and intelligent decision-making in intelligent justice,promote the integration of deductive logic and computational knowledge,and make judicial logic more reflective of the inherent behavior rules and new legal relationships so as to lead the judicial system and judicial civilization in the information age.Finally,through the interaction between data,platform and judicial activity participants,justice shall be understood as more than being a way of providing legal remedy,and play a much bigger role at dispute prevention so as to deal with the risks and changes of smart society.