A Study On Theory Of Political Question In Justice

In modern countries' judicial practice, there widely existed a kind of inclination avoiding adjudging so-called political question. That is the theory of political question. In this thesis, we mainly research the political question doctrine of the United States. As to how to judge which the political question is, it is difficult to obtain a unified standard. At present, there is the Brennan Test which comes from the Supreme Court of the United States, and the Functional-Test which based on the analysis to judicial function by theoretical circles. The theory of political question originates from the concept of judicial restraint, and its main theoretical basis are the theory of separation of power, the theory of representative democracy, and the request to judicial self-protection. This theory has accepted intense questioned and criticized from its birth, exists many of aspects to be discussed. It emphasis on the separation of power too much but neglects of the confrontation and balance, understands democracy too absolutely, emphasis on the judicial self-protection excessively but ignores the safeguards to people' rights. Through the inspection to the judicial precedent of the Unites States, we discover that the scope of the theory' application is ambiguous and uncertain; and the number of its application is falling off day by day. In fact, because of the advantages of judicial approach, justice is necessary to interfere with the solution of so-called political question.