Express The Conflict Of Freedom And Independence Of The Judiciary And Its Trade-offs

The freedom of expression is one of the basic human rights generally recognized by modern constitutionalism, while the independence of the judiciary is a part of the principle of checks and balances that required by modern constitutionalism. The majority of the states all over the world have constitutionized both of them in a variety of manners, though differing in the interpretation of them. However, the coherence of the constitutionalist value won't reduce the conflict that inevitably exists between them. The mass media and the public may supervise the judicial power with public opinion under the protection of freedom of expression. But in such case, the independence of the judiciary can possibly be affected. In China, the supervision over the judicial power with public opinion has been increasingly strengthened in recent years. Meanwhile, the problems of Opinion Judiciary and Moral Judiciary have been put up, and the conflict between the freedom of expression and the independence of judiciary has become increasingly obvious. Nevertheless, the domestic legislation concerning the relationship between the freedom of expression and the independence of judiciary is few. On the other hand, a lot can be learned from many developed countries about the legislation and legal practice concerning the balance between the freedom of expression and the independence of judiciary. In this paper, I try to throw out some legislative suggestions of balancing the relationship between the freedom of expression and the independence of judiciary through analyzing the jurisprudence of the freedom of expression and the independence of judiciary, introducing foreign practice, and concerning our legislative and judicial practice.This paper is divided into four chapters, as follows.The first chapter describes the basic concepts of the freedom of expression and the independence of judiciary. In this part, I try to clarify the concepts of certain terms that are frequently used in this paper after summarizing the opinions from different scholars. This chapter also analyzes the jurisprudence of the freedom of expression and the independence of judiciary. In the freedom of expression part, I firstly review the history of free expression theory, and then discuss the fundamental values of the freedom of expression based on the mainstream opinion, and analyze the protection scope of the freedom of expression and the theories concerning the boundary of the freedom of expression. In the independence of judiciary part, I firstly review and analyze the institutional history of the independence of judiciary, and then discuss the two fundamental values of the independence of judiciary.The second chapter analyses the relationship between the freedom of expression and the independence of judiciary with a theoretical view, and proposes a critic in balancing the conflict between the freedom of expression and the independence of judiciary. I firstly analyze the legitimacy of supervising the judicial power with the rights of free expression, then put up the problem of tyranny of the majority to prove the possible danger the freedom of expression may pose for the judicial justice, and then infer from the analysis of judicial justice the result of such danger, and the boundary of the independence of the judiciary. Finally, I throw out the critic in balancing the conflict between the freedom of expression and the independence of judiciary, and briefly discuss the meaningful value that the freedom of expression and the independence of judiciary may have concerning the development of rule of law.In the third chapter, some introductions about foreign legal practices and domestic cases and regulation are made. After that, some principles that may be useful in such legislation are proposed in accordance with the circumstances of China. Finally, said solutions are proposed.The fourth chapter starts from a practical view, and tries to propose some legislative solutions to the conflict between the freedom of expression and the independence of the judiciary.