The Balance Of Substantial Justice And Formal Justice

Justice as a value of law has many forms, substantial justice and formal justice is one ofthe mostly used forms of all. This division of justice is the basic one and with mostimportances. Substantial justice can not be seen, but it exits in nature law and social morals;while formal justice can be "seen" in laws,the value it contents is be seen as "the rule of law"and it has its independent value from substantial justice. The law should make substantialjustice its highest pursuit,but it is too hard to achieve in reality so that formal justice come upto cover its position. But if we blindly pursue the formal justice of law, the law would becomeformality and woodenness to society, even go against with substantial justice. Thecontradiction of substantial and formal justice has several patterns of manifestation,thesepatterns reflect different faces of the connotations of substantial and formal justice.In the real world, as a kind of justice which "can be seen",formal justice actually is analternative way to pursue real justice.Substantial justice has to make concession to formaljustice to tolerate its imperfection. But as the final goal of the rule of law, substantial justicehas to rectify deviations of formal justice, this function can be found both in the process oflegislation and judiciary.How to find the equilibrium point of them two and find a way toreduce the harm from that contradiction to the maximum extent,is a question that we have toanswer in the development of rule of law.EU’s legal regime is one of the best model in dealing with this contradiction. As thefirst super-national entity in our world, EU’s legal regime not only inherited the tradition offormalism in law of Western Europe, but also trying to find creative way to make justicehappen. EU has always treated substantial justice as a basic principle of its society andlegislation. This dissertation use EU’s legal regime as a case, try to analyze the forms ofsubstantial justice, the contradiction between substantial justice and formal justice and thefunction of rectification of substantial justice in the legal regime of EU. This dissertationhopes bringing about some useful inspirations. Excluded the introduction and conclusion,thebody of this dissertation contents four parts:Part I explicates the value of justice in law. From Rome to ancient China, thisdissertation look back into history and reveals that justice is always the final pursuit of humanbeings. While the justice as the value of law has unique meanings. Then, by analysing JohnRawls’s social justice and his two justice principles,this dissertation conludes the meaning of substantial justice which is benefit for the least favored persons.In part II, this dissertation use three cases to reveal three patterns of the contradictionof substantial and formal justice,which are social justice, specific and abstract justice,substantive justice and procedural justice.Part III is mainly about the theories of the relations of substantial justice and formaljustice, and how these relations reflecting on EU legal regime.Firstly, these two justice hasdifferences in essence;secondly, those differences make it no possible to pursue one justiceonly at one time, these two justice are on the sides of a balance;lastly,in the background of therule of law, formal justice is the foundation of rule of law, that is why substantial justice has totolerate the imperfections of formal justice.Part IV explicits that substantial justice have to rectify formal justice as the final goal ofthe rule of law. This rectifying mainly happens in two ways. This dissertation also take thelegal principles in EU law, EU’s precedents legal system and the discretion of European Courtof Justice as three examples.The conclusion part mainly indicates some inspirations which our legislation andjudiciary could draw from the rectification function of substantial justice, and indicates theview that we should pay more attention on realization of substantial justice in thedevelopment of the rule of law.