Discretion And Judicial Justness

Compared with ethics and religions, law is the systemic mechanism thatis more efficient and general to guarantee justice to be realized in sociallife. However, law has inherent limits that can not be overcome easily thoughit has acquired delicate technical reason. To maximize judicial justness andsocial justice, "discretion" is adopted in legal life as a systemic methodin which judicial power works. Meanwhile, it is a pity that the adoption of"discretion" inevitably leads to extension of "human" factor. Therefore,non-personalization of "discretion" becomes the problem both in legaltheory and practices. Undoubtedly, where there is no "discretion", there is no fulfillmentof judicial justness and social justice, so what we should do is to concentrateon standardizing its operation. After trimming and analyzing basic theoriesof "discretion", the paper tries to build up non-personalization mechanismof "discretion" theoretically from three aspects, namely legal form, legalprocedure and legal profession, and present some constructive suggestions, 3considering judicial reform in China. The author believes that if only thewhole society, including and especially the legal profession spares noefforts to judicial justness and social justice, they must be realizedfarthest by non-personalization mechanism of "discretion". In the paper, some methodologies, like jurisprudent logical analysis,comparative analysis, historical analysis and dialectic analysis, are used.The paper consists of the following four parts. First part is the introduction. Realizing that human society has beingin pursuit of justice for a long time, the author analyzes the connectionsbetween justice and law, general justice and specific justice in the beginning.The author argues that law is the most efficient and important systemicinstrument to realize justice and justice itself can be divided into somelevels. Based on above analysis, the core viewpoint of this paper is presented,that is where there is no discretion, there is no justice. Second part is about basic theories of discretion. The paper analysesthe basic theories of discretion with three chapters. Firstly, the conceptof discretion and its main characters are introduced; discretion systems intwo main legal genealogies worldwide are studied comparatively, so as to givea macroscopical picture about discretion. Secondly, scope of application ofdiscretion is analyzed. The author argues that procedural matters,evidentiary matters and substantial matters all can apply discretion. Thirdly,necessity of discretion for realization of justice is discussed in detailtheoretically by historical analysis, comparative analysis, logical analysisand dialectic analysis. The third one is the main part of the paper, which is about judicialjustness and non-personalization mechanism of discretion. The creative ideas 4of this paper also lie in the part, reflecting the author's longing forjudicial justness and social justice, and his endeavors and efforts tobuilding up concerned systems. The author argues that when what discretionreflects is the will of legal community, its holy mission for judicialjustness and social justice is accomplished. Unfortunately, it is not easyfor the will of legal community to come into being. After careful analysisand pondering, the author draws a conclusion that legal form, legal procedureand legal profession are the essential elements to ensure discretion toreflect the will of legal community, and presents some constructivesuggestions, considering judicial reform in China. The last part is the conclusion. The part briefly introduces the mainviewpoints, contents and structure of this paper as a whole. The authorexpresses his steady confidence in fulfillment of rule of law in China.