Theory Of The Relation Between Justice And Politics

In recent years, the development of the rule of law put forward higherrequirement to the improvement of the judicial system, which makes the theory ofjustice become a hot area of research. Turning to the issue of justice is inseparablefrom the discussion of the relationship between the judiciary and politics, because thejudiciary and politics tie so close in the practice of justice in our country. In fact, thesituation makes it hard for the revolution of judiciary, so it is pretty important toclarify the relationship between judicial and politics. In the area of theory, there werelots of discussions between the relationship of judiciary and politics, but take the issueas direct object of study was rare. Some studies just involving one of the aspects,which makes it hard for a comprehensive understanding. For instance, some scholarsemphasize the judiciary should be independent of politics, some scholars put up withthat justice can not go without ideological. At first sight, we might find that the twoopinions stand on two opposite land, but in fact, both of the two opinions are theaspects of the relationship between judiciary and politics.Through this article, the author attempts to define the following aspects: Thejudiciary is divided from the political power, so the judiciary has political attributes.Such as, judicial function was impacted by the political system, the judicial has thecharacteristics of judicial ideology; On the impact of judiciary put to politics,judiciary should assume political functions, so that the power of politics can berestricted and the behavior of politics can be well regulated; On the impact of politics put to the judiciary, the politics should ensure the relative independence of thejudiciary, which can keep the judiciary functioning well, and may keep the legitimacyof politics; If the impact of politics put to the judiciary was out of normal way, thepower of politics may break the rule of the judiciary, and it may also damage thelegitimacy of politics. At the present stage, the relationship between judiciary andpolitics in our country is a bit abnormal. So we should take measures to put it back toit’s own way.The paper is organized as follows: The first chapter is about the politicalfunctions of judiciary, which contains three parts. The first part is trying to bring inthe concept of the political functions of judiciary by analysis the evolution andtransformation of judicial functions, the subject of the political functions of judiciary,the dispute in practice. The second part is trying to analysis the feasibility and limitedof the political functions of judiciary. The third part is mainly about the specificfunctions, including achieve social control, create public policy and constraintpolitical power. Totally, the first chapter is describing a normal relationship betweenjudiciary and politics.The second chapter is mainly about the independence of judiciary, whichcontains three parts. The first part is trying to discuss the general theory of judicialindependence, including the theoretical foundation of judicial independence, thepractice of judicial independence and the value of judicial independence. The secondpart is trying to analysis the necessity of judicial independence, which including thefollowing parts: Judicial independence will guarantee the effective exercise of judicialpower; Judicial independence can maintain the legality of the politics; Judicialindependence can ensure the political functions of judiciary practice well. The thirdpart is trying to analysis the relativity which judiciary should be independent frompolitics. It means that the judiciary can not abandon its political attribute.The third chapter is about the politicization of judiciary, contains three parts,which mainly analysis the problem of the relationship between judiciary and politicsin our country. The first part is mainly about the specific situation of the politicizationof judiciary, which contains that judiciary assumed political functions, the localization of the exercise of judiciary, the bureaucratic of the management of courts and so on.The second part is about the reasons of the politicization of judiciary, involving theimpact of tradition and the weakness of judiciary. The third part put up with someadvice to solve the problem mentioned before: The court system should separate fromthe administrative structure; Establishing the power of judicial review; Promote theprofessionalization of judges; Bring the relationship between judicial independenceand the party leadership reasonable.