Study On Balance Theory In Justice

The balance theory discussed in this paper is based on Habermas's discourse theory, Alexy's theory of legal argumentation and principles of balance theory, which is a method theory to address the difficult cases and legal argumentation encountered in traditional legal mode. The conceptual jurisprudence arised from the nineteenth century advocated the subsumption judicial decision, which is to combine the specific facts of the case with the well-established complete legal norms, then the case can be derived by calculating the logical conclusion. This kind of ruling can prevent the judge creating law in the trail, thus the separation of judicial and legislative can be achieved. Well, in the twentieth century, however, with the development of civilization, the progress of social life and the diversified interests, judges often encounter some difficult cases in the field of justice. The previous subsumption methods can not evaluate and make decision among the disputes and conflicts of interest, so many scholars have been questioned and criticized it. By evaluating relevant interest in a way of interest measure, the jurisprudence of interests make up for the disadvantages of conceptual jurisprudence, which contributes to the appropriateness of decisions. But the jurisprudence of interests itself has inherent deficiencies, which is the standard of interest measure. The balance theory appropriately enhances the interest measure theory by providing a rational discussion through dialogue on the conflict, the value of the benefit of comparison. This idea achieves the participation of the main soliloquy from the judges to the debate to participate in the conversion of both parties. Through the procedural requirements, the fairness and the autonomy of argument is achieved, the properness and the rationality of the verdict are preserved with the maximum interest of both bodies. This paper is divided into six parts:The first part is the introduction. This part introduces the origin of this paper along with the research status, the core issues and research purposes.The second part is the difficulties faced by traditional models of justice-the practice needs of balance. This section is to introduce the two difficulties usually encountered in the traditional model of justice, one is difficult cases, the other is the problem of legal argumentation. It is because of these two aspects of the problem and difficulties in judicial practice, the practice need of balance theory is needed.The third part is the historical origins and growth of balance theory. Balance theory is built on the basis of the jurisprudence of interests, which is to make up for shortcomings of conceptual jurisprudence. It is a theory enhancing the conceptual jurisprudence. Therefore, this part introduces the decline of the conceptual jurisprudence, the rise of the jurisprudence of interests and its encountered questions and criticism. Balance theory makes up for the defects of the jurisprudence of interests, and had expanded and improved it.The fourth part is the basis of the balance theory. Balance theory is primarily based on Habermas's discourse theory, Alexy's theory of legal argumentation and principles of balance theory. By Habermas's discourse theory and the according truth consensus theory, a judicial process can be regarded as a process to seek consensus through dialogue, this process relies on the ideal speech situation as the protection of free reasoning and argumentation, which ensures the results of rational argument. Alexy's theory of legal reasoning and Habermas's discourse theory come down in one continuous line, which elaborate the rules for the argument, the balance theory also was provides a guideline to the selection of the sumption.The fifth part is to rethink the implication of balance theory. First of all, the implication of balance theory are summarized in four aspect, aiming to reveal its essence; secondly, the basic characteristics of the balance is interpretation and reflected; finally, the lacking of balance theory is reviewed and a reasonable attempt to explanation to dispel the concerns of skeptics is given.The sixth part is the conclusion. The whole paper is summarized. The purpose of this essay is to explain the balance theory in order to provide some inspiration to the judicial practice in China, and by the elaboration of the balance theory, the author wish to make a modest contribution to a democratic and efficient jurisdiction environment.