Trying To Analyses On The Formal Rationality And Essential Rationality In Criminal Judiciary

This paper aims to make a thinking of the formal and essential rationality of laws in criminal judicial practice and, to make a proposal to build up the legal mode based on the premise of formal rationality as well as to take account of essential rationality.Rationality of law is divided into two forms such as formal rationality and essential rationality. Formal rationality boils down to the calculability of means and procedures; and essential rationality emphasizes on the content rationality namely the consistency of laws and human requests. Essential rationality requires handling the disputes according to the specific circumstances such as moral, political and personal affective factors. Formal rationality and essential rationality are in the contradiction system of the unity of opposites. Through a sound analysis on the typical case of "XuTing" combined to the "public" opinions , we can conclude that the formal rationality of law is the primary principal in practice of criminal judiciary but can not be seen the only goal to achieve.The crime concepts in criminal laws also fully reflect the unity between formal and essential rationalities. In order to balance the relationship of formal and essential rationalities, there must to be done as following: incriminated on formal rationality, crime-expelled on essential rationality. Finally, the author proposes three modes of the criminal justice system in our country to achieve essential rationality: to change the judicial interpretation model and set up the criminal interpretation system dominated by judicial rights; to guarantee reasonable enforcement of free discretion right from thesources, mechanism and law executors; to establish the criminal case systemOnly when we give consideration to both, would the essence of law in Chinabe finally realized, and would the society governed by law become reality.