On The Uncertainty Of Rights In Judicial Decision

Rights discourse has become a fashion colour now. It is uesd by people to justify their behavior, but also used by courts as the criterion of judicial decision. However, the prevalence of it can’t cover its inner defects. In judicial practice, rights, the premise of judicial reasoning, is not perfect.In fact, it is uncertainty. This paper is intended to point that the uncertainty of rights in judicial decision does exist, discover the causes of it and find the way to counter with it.Apart from the introduction, the main part of this paper consists of four parts.The first part proves that the uncertainty does exist in the actual judicial decision and introduces the meaning of the uncertainty of rights in judicial process. New York Time Co. v. Tassini and the recent disputations on the right to hold a memorial ceremony for parents who have died, show that the uncertainty of rights in the judicial process does exist.The uncertainty of rights in the process of judicial decision means that, in searching for and recognition of the legal right to practice a judicial reasoning, the state of legal rights are not certain, that is, it is uncertain that whether legal rights exist or not, and what is the content of rights.The second part points out the reasons why rights in the process of judicial decision may be uncertain. First of all, there are uncertain factors in the process of "searching for the law", which make rights that enter the judicial process uncertain. Secondly, the ambiguousness, the ambiguity and the abstractness of legal language may make legal language uncertain. In order to solve this problem, judges need to resort to legal interpretation methods, but these methods are faced with the uncertainty of legal language, judgements on values which will be very different from people to people and arguments of experience which are difficult to realize. Thirdly, if there are two or more conflicting rights can be applied to the case, judges need to make a choice between conflicting rights. Judges need the help of the rank of rights and the measure of interests to solve the confliction between rights, but the rank of rights is not absolute certain, and the judgement on interests ultimately leads to the judgement on values,which leave judges in uncertain. Besides, sometimes judges need to estimate the natural right into a legal right by use of methods of presumption of rights. However, in these methods, there is a doubt in both of the major premise and the minor premise of the reasoning process.The third part points out that the uncertainty of rights makes the conclusions of judicial decision uncertain, which makes the protection of the rights weakened and legal expectations damaged and so on. Forthermore, it is not conducive to promoting the rule of law. Then, this part trys to put forward two ideas dealing with the uncertainty of rights. On the one hand, the judges can interpret the law like what Dworkin has suggested. Dworkin suggested that judges may get constructive interpretation of legal materials, and then choose the best one from political theories to determine the legal rights of the parties. On the othor hand, make efforts to build the legal professional community. Legal professional community can promote the judges to formate more consistent values, the concept of justice and rule of law and justice skills, thereby help the judges to deal with the uncertainty of the rights that occurred during judicial decision.