Sun's "not Entirely Theoretical Agreement" And Its Enlightenment To China

This paper discusses Sunstein’s profound " incompletely theorized agreement "theory and the revelation to China’s judicial practice now. The first part tells about thebasic connotation of "incompletely theorized agreement". Through the contrast withRawls’s"overlap consensus" to point out that Sunstein focuses attention to theuniversal applicability of the low-level principle consistency in area of law. Thesecond part shows its specific application ", including “judicial minimalism” andanalogical reasoning. In the judicial minimalism part, he emphasizes that the judgefollow the "narrow" or "shallow" way,but at the same time, they still obey to theminimum entity content. Here he summarizes "core value" as minimal trial concept.In the author’s view, this is Sunstein’s endeavor to ensure the effective operation ofthe judical minimalism for the limitations of "incompletely theorized agreement”. Indiscussing "wide" and "deep" way, Sunstein indicates the shortcomings of judicaltypes, such as "traditional doctrine" and "Hercules", and refutes Dworkin’s “holism”by “The Philosophers’ Brief”. It is worthy to stress that he does not deny "wide" or"deep" judgment method, but thinks that all discussion should depend on specificpractical situation. In specific cases to realize " incompletely theorized agreement ",we need analogical reasoning. The typification of habitualized actions tendency ofhuman knowledge constitute the integrity of the analogy model, so there are not clearboundaries between common law and statute’s reasoning methods. According toanalogy errors, Sunstein also puts forward suggestions to utilize reasonably. Thethird part is the overall evaluation of the theory. Incompletely theorized agreementfocuses to solve the problem of contradicition between the pluralistic value and justiceunity. Be aware of not reality to completely theorized judgement, it takes a pragmaticapproach. Although all result-oriented, but it is more than economic analysis ondiversification inclusive. In three judge situation, the way of minimum judge isbetween the "ideal" and "real", also is different with Dworkin’ s “holism” and legalrealism. In view of question of theory ascent, the author gives his own understanding.The fourth part is the application of the theory in order to inspire China now. Thefunction of the theory to apply practice is often limited, and there are certain distance between the legal theory and the judicial practice. Judicial activism is a holisticthinking of the trial, itself has limitations and could make more politicized judicial.But minimal judge can make political and judicial maintain a safe distance. Thesecond revelation is the case directing system. Referring to the directing casescontributes to incompletely theorized agreement, The case of judge completereference guide is a not entirely theoretical agreement. Based on a case of analogy, wereach the justice by similar treatment to similar condition, to realize a relationship ofunity. Analogy inference itself has limitations, and to use effectively we need to focuson the details of the case, depending on the sufficient reasoning for trial.