The Judge Bound： The Logic Of Discipline And The Reflection Of The Performance Appraisal System For Judges

There is a common sense among the legislators, the scholars and the managers ofthe court,that all the misuse of the power of the judge is because of the lack ofrestraint of the discretion of the judge. Thus no matter the restraint of the discretion ofthe judge in legislation,or the strict discipline of the judges are both necessary andright. This ideology, which can be called as the logic of discipline, is lack ofreflection and deserved to be criticized.As a sort of authority in modern society, the judge is both professional authorityand political authority, which means the authority of the judge is the composition ofprofessional authority and political authority. The professional authority includesthree elements: professional knowledge of law, ethics of legal profession,and thesocial identification of the operation of law; the political authority includes twoelements: power granted from the superior and the power of coercion. The ideal formof the authority of judge should be based on professional authority and backed bypolitical authority. However, at the stage of present, the form of the authority ofjudge in our country shows just the opposite.The performance appraisal system for judges is a typical representative of thelogic of discipline in the field of judicial administration. It is able to strengthen thepower of state for the regulation and accountability of judges, to stress the status ofthe judge as a spokesperson of the state, hence helping to improve the politicalauthority of the judges. But through the comparative analysis of two similarinstitutions: the performance appraisal system for judges and the technical statisticsfor professional basketball players,it can be deduced that the behaviour so-called as“making data” among professional players will be shown equally among judges, oreven more prevalent due to the lack of the necessary checks and balances. Therefore,the performance appraisal system is mainly negative for the political authority ofjudges.Since the judge is both political authority and professional authority, the organization of judges, namely the court should be the combination of two ideal typesof organization: the bureaucratic type and the autonomous type. Therefore the coreissue of the management system of judges should be that, between two oppositeideologies, the logic of discipline and the logic of liberty,which should be thedominant one in guiding the construction of the management system of judges. Next,the paper borrowed two concepts, functional rationality and substantive rationality,from Karl Mannheim,and argued that the logic of discipline is the product offunctional rationality, and the logic of liberty just derives from substantive rationality.The performance of judgment is essentially an activity of substantive rationality,andthe professional competence of the judge is also reflected in his substantive rationality.Therefore,guiding the construction of the court with the logic of discipline andadminister the judges with bureaucracy, which replaces substantive rationality withfunctional rationality in essence, will inevitably result in the repression of thesubstantive rationality of judges, negative for the improvement of the judges’professional ability and the training of professional authority leading type of judgeswho meet the need of the society ruled of law in the coming future.It may lead to a vicious circle if we try to control the judges’ abuse of theirpower with the logic of discipline. In the long run, we should abandon the the logic ofdiscipline, and reconstruct the training mechanism of the judges’ substantiverationality. The institution of the publicity of the verdicts can be regarded asmeaningful direction of the reform of the management system of judges.The significance of this research lies in the criticism of an unreflective ideologypopular with both the scholars and the practitioners for a long term——the logic ofdiscipline. This criticism also provides a new perspective and way of thinking for thereflection of the reform of the management system of judges.