A Study On The Consideration From Common Sense In Judicial Process Of Traditional China

Common sense is the foundation of traditional law of China.An ancient Chinese judger always looking for a balance between common sense and legal principle.It is a major feature of traditional Chinese legal sense.With the development of western formal rationalism in modern China,the consideration of common sense becomes less important or even being considered as dregs because it may affect the fairness of judge,but the value-free judgment from western countries is far different with ancient Chinese judgment,so we cannot deny the eastern logic just in a view of western logic.To keep the justice in modern judicial activities,we need to consider the common sense which just reflects the intension of justice.This paper analyzes judicial process.The analysis is not based on rationality or sensibility,and not based on western society or eastern society,but base on a real,complete and dynamic judicial process.The personal sense is unavoidable while a judge is making a judgment because the whole process in combined with reality,regulation,values and emotions.The effect of common sense to judicature can be seen more objectively under the analysis frame of judicial process.This paper uses the judicial process as analysis frame,and studies the effect of common sense consideration in Chinese traditional judicial process on the basis of legal precedents from ancient Chinese work of The collection of virtuous and brightness verdicts by famous judges of ancient China and Zi Zhi Xin Shu,and found that emotion,common sense and legal principle all play important role in judgment.Common sense is not common.It helps in restoring the truth and makes the final judgment acceptable for both the governor and society.The purpose of analyze the effect of common sense consideration in ancient judicial process is to learn the good part and make it useful for modern judicial process.It has positive effect in building a harmonious society and leads the society value.Common sense if a significant part of legal definition and ensures the justice of law.The consideration of common sense is not new.It is one of the most important parts when scholars study Chinese ancient legal activities.It's not an original creation but it creates a new view that researches the common sense from legal perspective and gives it a strong legal basis.A new explanation is given to the content and effect of common sense by analyzing the judicial process and judger's thinking pattern.