Judicial Restraint And Its Perfection In A Functional Differentiated Society

As the last line of defense in the society ruled by law,justice occupies the core position of the legal system in any modern country.In the face of a large number of social disputes,if the judicial system cannot make a strict decision of legal | and illegal | according to the currently effective legal norms,then the legal system cannot play its stable normative expected social function.However,from the judicial system unconstitutional review storm set off by the Supreme Court of the United States in 1803 Marbury v Madison case to the public opinion cases that breaks out from time to time in the era of informatization,big data and We media in China,the judicial system in operation is always influenced by the external environment irregularly.It is necessary to establish a clear position of judicial philosophy and form corresponding coping mechanism for the disturbance brought by the social environment to the judicial subsystem.This position is judicial restraint.This paper discusses judicial restraint by applying the social system theory of Nicolaus Luhmann and Toibner.The general principles of social system theory are also applicable to the analysis of contemporary China in the context of the formation of legal system and the basic differentiation of various social systems.From this perspective,we can understand and interpret the social anxiety and social problems in China in the transition period from the perspective of inter-system operation conflict.In the current theory and practice,for the highly functional modern society,the position and operation mechanism of the judicial subsystem is mainly the pursuit of social responsiveness,and different answers are given according to different situations.However,in the process of implementation,this tends to lead to the excessive production of standards,which leads to the actual non-standard,leaving room for sophistry.However,on the other hand,the traditional judicial restraint also shows the tendency of being excessively rigid and closed,which cannot adapt to the high changes of society and needs to be perfected according to the principles of social system theory.The first chapter of this thesis first examines the judicial restraint doctrine in the functional differentiated society,compares it with the similar textual centralism,judicial modesty,and the opposite judicial activism,and demonstrates the values of maintaining the authority of the rule of law and abiding by legal professional ethics contained in judicial restraint.Furthermore,the basic principles of Luhmann and Toibner's social system theory are set up to describe the judicial restraint of the legal system in the internal and external dimensions of the functional differentiated society.In addition,it mainly introduces the forms of expression and the significance of The Times of the judicial restraint philosophy from this perspective,laying a theoretical foundation for the latter part.The second chapter discusses the development of traditional judicial restraint and its rationality and disadvantages from an external perspective,including the decentralization and nature of the judicial review system in developed countries,as well as the unclear responsibilities of courts caused by the unconstitutional review right.In addition,due to the diversification of social needs and the concentration of social problems in countries in transition,the judiciary is often in a state of active and passive,which brings the dual risks of loss of governable rationality to politics and disintegration of social integration mechanism.Therefore,it is proposed that China needs to go beyond the two judicial positions and establish its own judicial philosophy.The next part is to turn The perspective to The current situation and existing problems of judicial restraint in China's functional differentiated society,and discuss The ideas to be solved and improved.First of all,this paper introduces the current features of China's functional differentiated society.China is a relatively more complex functional differentiated society and a country with its own characteristics.Both the judicial system and other systems operate under the unified leadership of the state.Judicial restraint is influenced by both internal and external factors of the legal system,In the external field,the moral and political and other factors interference in the judicial system leads to the dislocation of the value evaluation of many cases.In the legal system,the unsmooth communication between the judicial system and the two fringe systems of legislation and contract also leads to the phenomenon of "judge making law" and the legislation of judicial interpretation.These phenomena need to analyze their causes and consequences,and this series of social problems need to find solutions from the functional differentiation of society or the socialism itself,which falls into the fourth chapter;On the one hand,it stipulates the division of operation and function between systems,so as to maintain the reasonable communication between the peripheral subsystem and the outside world besides the recursive closure of the central region of the legal system,but the new connotation of judicial restraint is endowed,and the law it refers to is strictly limited to the field of positive law promulgated by the legislature,and the legal deduction is strictly carried out.Finally,the specific process of personnel and operation should be set up to determine the theory,in order to ensure the practical operation of the theory in practice.It stabilizes social normative expectations at the internal and external levels of the legal system,differentiates facts from norms,endows judicial restraint with new meanings under the premise of judicial centralism,and institutionalizes the operation mode that combines closure and openness.This thesis tries to grasp and improve the philosophy of judicial restraint from the perspective of the self-creation development and function improvement of the legal system itself,as well as the communication and structural coupling between the legal system and the external systems.