The American scholar Dworkin pointed out: "The court is the capital of the legal empire, and the judge is the prince of the empire." This is the solution to Dworkin's famous book "The Empire of Law", which expresses the supremacy of judges in the empire of law. Although Dworkin's assertion is not without exaggeration and bias, he speaks to the importance of judges to the rule of law. China is building a country ruled by law, and the people's courts exercise judicial power independently under the leadership of the Party and are not subject to any external interference. With the development of the rule of law in China, the importance of the people's courts in social life has become increasingly prominent. In a sense, the rule of law process will inevitably lead to a court-centred judicial structure. So, what exactly is the mission of judges in this judicial landscape? This is a question worth asking and thinking about.
Chen Xingliang. Professor and doctoral supervisor of Peking University Law School.
In ancient Chinese society, under the dominance of Confucian ethics and law, etiquette was used to enter the law, and etiquette was used to enter the punishment, and there was a relationship between etiquette and law. Therefore, the judge's mission is not to realize the value of the law, or rather, the law has no independent value of its own. Only the ethical content of the ritual is the value pursued by the judge, and the form of the law is often sacrificed in order to pursue this ethical value. When discussing the legal system in ancient China, the famous German scholar Weber described ancient Chinese law as a hereditary structure, which is related to the state form of the hereditary system. In such a hereditary state, there is a lack of rational legislation and rational judgment. Thus, there is the proposition that "arbitrariness undermines the law of the land." "Judges punish any radical change in life, whether or not it is expressly stipulated. The most important thing is the intrinsic nature of the application of law: ethically inclined hereditary systems seek not formal law, but substantive justice. Therefore, it is what Weber called kadi justiz (kadi is the judge of Islamic countries). In this kind of cadi justice, the judge does not undertake the first mission, but a heavy ethical mission. As a result, judges often ignore the express provisions of the law and directly decide cases based on ethical concepts and even Confucian teachings.
I do not deny the link between justice and ethics. However, the reason why justice becomes justice and judges become judges is because the law is independent of the ethical nature, and judges can only realize their ethical mission through justice. Therefore, the mission is the most fundamental for the judge. In the construction of the rule of law, I think what needs to be vigorously called for is the mission of judges. The ** mission of the judge means that the judge is only accountable to the law. Therefore, judges pursue formal rationality rather than substantive rationality. In criminal justice activities, legalism is the legal embodiment of formal rationality. The principle of legality should aim at not committing a crime unless the law expressly stipulates that it will not be a crime and that it will not be punished unless the law expressly stipulates it. Therefore, judges can only pursue criminal responsibility strictly in accordance with the law. As long as an act is not criminalized in the Criminal Law, it cannot be treated as a crime, even if it is harmful to society. In such a case, the judge should not be held responsible for the harmful act that is not expressly provided for in the law. The ** mission of judges means that judges are only responsible for the truth of the law, and do not undertake the mission of discovering objective truth. Legal truth refers to facts that are proved by evidence, which are legal facts that can be ascertained through judicial activities. In judicial activities, judges are in the position of adjudicators, and it is a principle of modern judicial activities not to sue or ignore, and in the case of a legal dispute between the plaintiff and the defendant, the judge is requested to make a ruling on it in accordance with the law. Therefore, the judge himself does not directly investigate the facts of the case and then discover the objective truth. The judge's task is only to hear and finally reach a verdict on the respective claims of the plaintiff and the defendant and their factual and legal basis. In the past, the principle of seeking truth from facts prevailed in judicial activities. "Thing" here refers to "fact" and "is" means "truth". Therefore, seeking truth from facts is a process of seeking truth from facts. If it is philosophically possible to make the above explanation, then in the law, can every case be realistic? Objective truth is the ultimate goal pursued by judicial activities and is a kind of judicial ideal, and this point is generally not wrong. However, it is doubtful whether objective truth can be used as a specific criterion for judicial operation. In particular, it is doubtful whether the judge of the adjudicator can be responsible for the objective truth of the case. The particularity of judicial organs in handling cases, especially criminal cases, lies in the fact that the facts of the case occurred before and the judicial trial came later, and they try to reproduce or restore the facts of the case through the evidentiary activities in the litigation, which is a kind of reconstruction of the facts of the case. Under normal circumstances, judges and other legal professionals involved in litigation activities did not witness the facts of the case. Therefore, the facts of the case (unknown) can only be deduced from certain evidentiary facts (known), so as to produce an inner conviction that the facts of the case have indeed occurred. Due to objective and subjective reasons, this kind of reconstruction of the facts of the case cannot completely reproduce the original appearance of the case, but is only close to the truth of the case. Therefore, as the standard of proof for judicial operation, objective truth is divorced from reality, while legal truth is desirable. In a case brought before a judge, the judge can only make a judgment on the basis of the evidence provided by both parties, and cannot be responsible for the so-called objective truth beyond the evidence. The judge's mission means that the judge can only achieve substantive justice through procedure. Legal justice can be divided into substantive justice and procedural justice. The mission of the law is to maintain a just order, and this just order can be regarded as the substantive justice pursued by the law. Law plays an important role in maintaining social order, and therefore, substantive justice is the return of law. However, the realization of substantive justice cannot be separated from certain procedures. This is because substance and procedure are two legal system designs to achieve legal justice: the former solves the issue of the fair standard of case handling, and the latter solves the issue of due process in case handling, and the two cannot be neglected. For a long time, China's judicial activities have tended to emphasize substance over procedure. In such cases, judges tend to focus on substantive fairness and ignore the importance of following process. In a country governed by the rule of law, substantive justice can only be achieved through procedure, hence the strong emphasis on procedural justice. Therefore, the mission of judges is not only to protect substantive law, but also procedural law. The mission of judges in a society is not the behavior of individual judges, but is determined by a certain social environment and the state of the rule of law. With the shift from the rule of man to the rule of law, so does the mission of judges. We expect that judges will play a greater role in a society governed by the rule of law and fulfill their mission. One end one.