Formalistic Justice Or People’s Trial:on The Twoness Of The Criminal Law

As the modernization of the legal system to further, criminal justice give people more and more times confusion. From the case of XuTing, LiChangkui, YaoJiaxin, China’s criminal justice formed professional judgment and public opinion impact uncompromising. Lawyers who make up of judges and jurists insist professional legal and loneliness, and believe that the administration of justice should not penetrate public opinion, moral, and other factors; more masses did not understand the so-called professional trial, and thought that the law and justice to the spirit of legal justice, which is unjust. This confusion professional "form of justice" and public opinion, the "mass trial" the antithesis of the authority of law reduced the people’s abiding sense of being weakened, confused, and thus evolved into crisis.This paper attempts to explore the relationship between formal rationality and substantive rationality of the law by the law (criminal law)’s "duality", and then provide solutions for the plight of the Chinese criminal justice. In this paper, I use case studies, legal philosophy and methods of sociological in researching. The law’s duality refers to the normative and conceptual aspects. Normativity of law, or technical, can also be called a formal rationality, belonging to the content of the forms of justice, refers to the angle from the positive law, and abstract out the characteristics of the legal form of value-neutral way. Legal conceptual content and value orientation from the law up inspection laws, the substance of justice or substantive rationality thought that the law is required to achieve certain standards of justice or to meet certain ideology. This paper argues that the law is not an unreasonable human machine. On the contrary it is a combination of formal rationality and substantive rationality.By analyzing the different approaches of the natural law and positive law school, both the debate about the draconian proposition is actually a super form of the concept of morality is both common concern. The former by the morality of the law to maintain the authority of law and justice, but reduced the authority and justice become a concept can’t be determined; the latter by cutting off the relationship between law and morality, to safeguard the authority of the law, and then by the law-abiding theory to solve the justice of the law, through a hierarchical approach, we can uphold the authority of another justice. Part of the unjust law should first recognize its authority, followed by due process to be corrected. If such injustice has reached a certain limit, you should apply the "do not obey the theory."Criminal Justice is the rationality of the legal person and the feelings of the majority of people fit between formal rationality and substantive justice are not contradictory. The former means the latter is the goal; in the process of law-abiding, we should form of rational obedience to achieve substantive justice; unjust situations in the law, we can in time through the right to due process for correction; In extreme cases that meet specific criteria, we can’t obey the law. Therefore, our criminal justice should avoid falling into the so-called "form of justice" and "mass trial" isolated misunderstanding. Of course, this dilemma of the Chinese criminal justice has its own particularity, we establish the form of rational basis, but also has the emphasis on the substantive rationality of the traditional key to solving the problem is to attach importance to both substantive justice in the form of rational basis.