On The Distinguishing Technology In Judicial Reasoning Of Common Law

Nowadays common law research in China is flourishing, but on the whole some research including the research of distinguishing technology still remain in the simple and rough level, and need to be studied in a meticulous and deep-going way. In view of the characteristics of common law itself, the thorough understanding of common law demands to take a historical and judicial way. Distinguishing technology is a point of penetration to judicially interpret common law, and it will be of great help for us to deeply understand common law and its system of precedent.Distinguishing technology is the cohesive whole of specific reasoning means designed to demonstrate that in common law judicial reasoning why a precedent does not have binding force on a pending case, or in other words, why a ultimate judgment of case in hearing deviates from a seemingly binding precedent. During the process of following stare decisis, that is to say, when applying the precedent rules to the pending case, the recognition of "precedent" is only a preliminary judgment,and it can be overturned. The role of this judgment is primarily procedural and is aimed to find a starting point of judicial reasoning. Distinguishing technology has the right start in this preliminary legal binding precedent. Because of its complex internal structure, distinguishing timely presents many characteristics, such as a kind of judicial skill, a kind of power, a kind of principle and so on. It has both obvious differences and close connects with analogizing and overruling.As a technique or method to deviate from seemingly binding precedent of common law judicial reasoning, distinguishing technology can be justified by reasons from judicial precedent system, legal reasoning, essential justice, etc. Distinguishing technology makes the common law judicial adjudication able to realize the unity of the formal justice and substance justice. Distinguishing not only exists in revising the rules induced from the previous cases, but also exists in the judge’s inductive act itself. Thus there are different types of distinguishing technology, including one aimed to delimit a legal rule and its exception, one to solve the conflicts of legal rules and one to interpret anew the rules. Applying distinguishing technology must meet the requirements of the formal conditions and substantive conditions in spite of its different types; during this process judges in general follow these steps as follows:subjunctive reasoning, adjusting the criteria of similarity, re-inducing legal rules. These steps reveals the most general characteristics of the process of distinguishing.Distinguishing technology is not the atomic type isolated individual, and there is a close connection between distinguishing technology and other things. To explore the essence of the distinguishing technology need to start from the relation between distinguishing and other related things. Distinguishing technology is closely related to common law. Firstly, distinguishing technology is a way for common law to create new legal rules. This law-making way is strictly limited, requests directly promoting the delicate and careful level of common law rules and common law system, and its individual case operation basis determines that common law is gradually growing. In addition, this law-making way in practice also has the function of indicating legal problems. Secondly, distinguishing technology is a mechanism to construct common law as a open system. The openness of common law system doesn’t refer to that in judicial reasoning the institutional decision can be only based on external materials or bases, but means that external materials and bases through some internal mechanisms can be converted into legal code. Distinguishing technology makes the judges in the judicial process able to both appropriately improve the rules and perfectly deal with disputes. Thirdly, distinguishing technology is a method for common law to promote its logical consistency. The gradual development of common law not only happens in that many new rules are included in its system, but also happens in that the distinction between common law rules becomes more and more detailed and precise. Distinguishing technology is also closely related to stare decisis. Firstly, stare decisis is Janus-faced and distinguishing is an indispensable part of it. In common law legal reasoning, the situation of applying distinguishing technology does not constitute an exception but an important feature to stare decisis. Secondly, distinguishing serves as one of the most important reasons to justify stare decisis. To justify stare decisis need to pay appropriate attention to the internal of stare decisis. The reason why people believe common law is stable, fair and efficient, is not only in the practical effects of following stare decisis, but also in that the internal structure of stare decisis gives us the rationality to trust it. In addition, although we can’t take the pragmatic use of stare decisis as the principle’s source of legitimacy, but stare decisis itself actually can produce pragmatic ideas. "Follow the precedent, or distinguish it" undoubtedly provides the institutional soil for the survival and development of pragmatism.Distinguishing technology is the unity of experience and logic. It is the process that judges seek specific way from the judicial experience in order to deviate from precedent rules in pending cases, and further seek "the law based on experience as a statement and recognition of justice". During this process, judges follow a set of "implicit theories" which is generally only known to the occupational strata of judge and unknown to outsiders. Although the common law judges often claim it is the experience rather than logic that makes common law obtain a eternal life, but actually the reason why the river of experience flows at great speed all the time is that it is never out of the solid bed of logic.In the current period, the progressive construction of the rule of law in our country need to learn from the beneficial experience of other countries, and the distinguishing technology is very helpful to our country’s judicial practice. In judicial process, distinguishing technology can be used to differentiate some cases,which only have seeming similarities in common, so as to enhance the rationality and persuasive power of the judgment. We can reasonably and appropriately learn from distinguishing technology on the basis of giving full play to the value of existing legal methods.