Query On The Theory That ’Judicial Power Is Social Power’

The essence of judicial power is a force of state, no matter from the perspectiveof the function of justice, or from the perspective of the value orientation of justice,the essential nature of judicial power is a public power which is different from othersocial power. In recent years, since the reform of judiciary system keeps on deepening,judicial socialization, judicial de-politicization, judicial de-nationalization, and socialstandard judicature have gradually become hot topics of social discussion. ProfessorZhou says that judicial power should or mainly should belong to social power fromthe perspective of the spice of jurisdiction. Some other scholars believe that judicialpower is a “jurisdiction”, and different from other two type of national power in thesense of politics, the power attribute of jurisdiction, which is considered as the thirdkind of power, depends on the social power of citizen, and should belong to socialpower, but not national power. No matter how to defy the nature of judicial power,this kind of theory consideration the judicial activity as generalized solution dispute.The characteristics of theory is that take the litigation and some activities of the socialorganization as a judicial activities. The author believes all those theoreticalconclusions which classify juridical power as social power can be called “jurisdictionsocial power”. But，theoretical conclusions which classify juridical power as socialpower is not reasonable and exist some theoretical misunderstanding:1、they confusethe conception of public power and social power, and interpret the famous saying inpolitical theory,“national power come from people”, as “national power is people’spower or social power”, then believe all national power should return to society.2、they confuse the conception of the function and nature of juridical power, believe thatthe value orientation and public function of juridical power can be equals to the powernature of juridical power. The whole Chinese society is undergoing a period oftransformation, so does juridical reform, which constricted by the transformation ofother element in social system. Considering the influence of complicated andchangeful environment, for guarantee the stability, continuity and effectiveness ofjuridical reform, it’s necessary to understand the nature of juridical power whicheffects of the judicial independence and the judicial authority. The significance ofunderstanding the nature of juridical power is: the understanding of the nature of lawdirectly determines the orientation of juristic research and legal system development,which is a problem we can never neglect. Thus, if we want to study the operatingstructure of juridical power which meets the demands of social transformation, weshould understand the theoretical premise, the nature of juridical power, and managethe relationship between juridical power and social power, adjust the relationshipbetween juridical power and other national power. In this way, we can avoid not onlythose flaws and conflict in law, but also radical changes in the institutionaltransformation.