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Text | Qing Shi Yaohua
Editor|Qing Shi Yaohua
«——[·Preface·] ——»
Objectively speaking, the judicial transformation in Britain in the early modern period was only the initial stage in the process of judicial modernization in the United Kingdom, and the road to judicial independence and modernization was still very long. But in any case, British justice was finally born out of the medieval feudal system and completed the phased task of judicial modernization in modern Britain.
The end of the Stuart dynasty served as an important inflection point, marking the beginning of a smooth path for English justice, and it was not until the 19th century after the Industrial Revolution that a new round of transformation began.
«——[·Driving political change.]——»
It is not difficult to find that the development of British justice in the early modern period was not a complete internal reform, and the force for promoting transformation came from the efforts of the legal profession itself, and it was inseparable from the more fundamental force - the promotion of political change.
The 16th century was one of the most critical transitional stages in the history of British political development, and the 16th century Reformation, the rise of royal power, the expansion of legislative power and the two constitutional revolutions in the 17th century fundamentally changed the national nature and political model of Britain. As Montesquieu pointed out in the 18th century as an outsider, England "looks like a monarchy, but in fact it is a republic."
Even Hobbes, who believed in absolute monarchy, had to admit that law, as an arm of the state, existed in the hands of parliament. It is clear that judicial reform in Britain in the early modern period was synchronized with political change, or judicial change both reflected and affected political change. Let's go back to the history of early modern English justice to illustrate this synchronicity.
First, equity and despotic royal power reinforce each other and rise together. We have discussed this in Chapter II, Section 4. The relationship between equity and royal power is a synchronous and mutually reinforcing relationship. The king's authority provided a strong backing for the rise of equity. At the same time, the Court of Equity also serves the royal power and promotes the further strengthening of the royal power, and the two rely on and reinforce each other.
Second, stagnation or regression in judicial development is often the result of political conflict or revolution. No matter which political force, it is trying to control the judicial apparatus and attack opponents or maintain the rule of the system in the name of the law. In the early Stuart dynasty, when constitutional conflict was fierce, the absolute royal power gained superiority over parliament, the judiciary was subordinate to the royal power, and the law became what Hobbes called "the public order of the sovereign (absolute monarch) to his subjects."
After the outbreak of the revolution, the parliament gained superiority over the king on the battlefield and became the new "sovereign." The judiciary has in turn become a tool for enforcing the orders of the "new sovereign." After the restoration of royal power, although political compromise maintained temporary stability, in the later years of the reign of Charles II, constitutional conflicts revived, and the judiciary was once again reduced to a tool for the king to compete with parliament.
Finally, the achievement of the fundamental independence of the judiciary was based on a political compromise between Parliament and the King. The traditional subordination of the judiciary to royal power is the main reason why the judiciary cannot attain an independent status, and in such cases it is futile to rely on judges appointed by the king to try to maintain independence within the judiciary.
Judge Edward Kirk was the first to realize this, and he later threw himself into the political revolution and chose parliament as the stage of struggle, achieving certain results. Later legal professionals mostly followed in Kirk's footsteps and fought political struggles to achieve judicial goals. Both the Revolution of 1640 and the Glorious Revolution saw the legal profession everywhere.
Their cooperation was also compensated by Parliament. During the revolutionary period, parliament made many attempts at judicial reform, especially the judicial reform commission headed by Hale made many far-reaching reform proposals. During the restoration period, the parliament escorted the reform of the court, and many achievements survived under the guarantee of parliamentary decrees.
After the Glorious Revolution, the establishment of the principle of the supremacy of law provided a vital condition for the basic independence of the judiciary. The king eventually renounced the legal prerogatives, and parliament provided reliable legislative guarantees for the independent exercise of the judiciary.
Of course, in addition to political change as the direct driving force of judicial transformation, the transformation of British society in the early modern period also put forward the requirements of the times for judicial transformation.
From the 16th to the 17th century, the circulation of ± land in Britain, the change of property rights, the reconstruction of social classes, the rise of industry and commerce, people's way of thinking, and the renewal of cultural and educational levels, all of which more or less acted on the superstructure of the sending country, promoting the top-down and bottom-up changes in Britain. As an integral part of this macroscopic transformation, the judiciary has closely followed the footsteps of the times and fulfilled its historical tasks under the influence of various factors.
«——[Progressive empiricist path.]——»
Britain is the mother country of modernization, and its gradual path between tradition and change is typical of endogenous and national identity. As an important part of Britain's modernization, judicial transformation also reflects its own characteristics.
Looking at the evolution of modern British justice, we can see that this unique country has an inherent sense of national pride, cherishing tradition and innovation that has driven it to embark on a unique and progressive path of modernization.
The transformation of the judiciary is, in the final analysis, the modernization of the judiciary. The English road has its own characteristics, it is "typically derived from the hairstyle... It is completely dependent on the main resources and internal strength to start and complete judicial modernization. "This originality has prevented English justice from a sudden break between tradition and modernity.
Since Henry II, the English judiciary has undergone several major transformations, but at least on the surface, the English judicial system has not fundamentally changed. The inheritance of tradition has shaped the conservative color of British justice. Conservatism is rooted in the Anglian nation's cherished traditional national identity, which was created by "Britain's earliest legal concepts, patterns of conduct and customs."
However, this apparent conservatism cannot obscure the inherent modernity of the evolving British judiciary. As Carnegon said: "The fact that English legal history has not been completely fractured in the development of the past eight centuries does not mean that there have been no periods of change, after all, the history of English law is not a fairy tale as static as Sleeping Beauty." ＂
The modern era of British justice is like a thousand-year-old castle that is constantly equipped with all kinds of modern furniture and appliances. This formal conservatism and the pursuit of internal modernity are the greatest characteristics of the British judicial development path.
Undoubtedly, the main factor in this characteristic lies in the British empiricist legal philosophy. Kirk's theory of "technical rationality" in the Injunction Case is a powerful interpretation of this philosophy. He argues that judicial rulings "are not based on 'natural reason,' but on technical rationality and legal judgment."
Law is an art, and anyone must go through long-term study and practice to truly master the law. Another 17th-century jurist, judge Matthew Hale, who inherited Kirk's thought, praised the empiricism of English law in his critique of Hobbes's natural reason: "Only the wisest can realize that law is the fruit of repeated and long experience... It is the wisest way for mankind. ＂
What Kirk and Hale call empiricism is indeed one of the fundamental features of English law. As with the legal careers of Kirk and Hale, the legal education and subsequent judicial practice of common law professionals are based on experience, and they develop the habit of thinking from individual to individual and precedent.
Always enshrined "the life of law is not logic, but experience" as the highest creed, which is very different from the civil law system's mode of thinking that advocates logical reasoning and pays attention to abstract concepts, from the individual to the general and then from the general to the individual. Therefore, only the British, immersed in ancient traditions and empirical philosophies, can understand their judicial concepts and models, and only they can make all kinds of modern equipment operate normally in the "thousand-year-old castle" of the judicial system.
The most vivid manifestation of empiricism in judicial practice is the unique jurisprudence of English law. Blackstone once gave high marks to the advantages of jurisprudence, saying: "When similar cases reappear in a new v. Lo, it is an established rule to follow precedent" and "precedents and rules must be followed unless there is obvious absurdity or unreasonableness."
On the merits of the principle of precedent, he emphasized; On the one hand, it can ^"maintain the stability and fairness of the judicial balance, and it is not easy to fluctuate due to the personal views of subsequent judges"; On the other hand, the law that has been adjudicated becomes a "permanent rule," and subsequent judges "cannot arbitrarily change it according to their personal feelings."
Jurisprudence makes English judges feel like legislators in the process of creating precedents. Respect for precedents reflects judges' cherishing of tradition, and the creation of precedents reflects the creative spirit of judges, so jurisprudence interprets the spirit of British law that is both conservative and innovative, and also embodies the empiricist philosophy of British justice.
The English 19th-century poet Alfred Tennyson celebrated jurisprudence as a hallmark of English law; "The country has a just, ancient name / There is a stable government in governance / With one jurisprudence after another / Freedom slowly extends to the lower classes. ＂
The transformation of modern British justice presents us with a unique path of finding a balance between tradition and change, pursuing modern sacrifices under the façade of conservatism. We can summarize it as a gradual empiricist path.
However, empiricism that focuses on tradition and practice ensures the stability and continuity of British judicial development, but under the guidance of the legal philosophy, the path of British judicial modernization once lagged behind many latecomer modern countries, and until the 20th century, Britain still hovered on the road of judicial independence. The long and tortuous nature of judicial independence is undoubtedly a product of this conservative philosophy.
«——[·Epilogue.]——»
The philosopher and justice Francis Bacon, Kirk's contemporary, despite his outstanding achievements in judicial reform, his claim to judicial subordination to royal power was traditional. He believed that judges, as agents of the king's judicial power, should obey the king's orders and be willing to be "lions under the throne."
Another philosopher, Hobbes, inherited Bacon's claim and insisted that judges should be consistent with the sovereign and completely obey his instructions and orders. His so-called "sovereign" was the absolute monarch of England in the era of absolute monarchy in the 17th century. The ideas of Bacon and Hobbes became theoretical tools for tyranny to control justice.
«——[References] ——»
- Jizo: A History of the English Revolution in 1640, translated by Wu Guangjian, Beijing: Commercial Press, 1986.
- Montesquieu: On the Spirit of Law, vol. 1, translated by Zhang Yanshen, Beijing: Commercial Press, 1% 1 year. Telivy: Law and the Rise of Capitalism, translated by Ji Mix, Shanghai: 19% of Xuelin Publishing.
- Geng] Bodenheimer: Jurisprudence: Legal Philosophy and Legal Method, Deng Zhenglai Beijing; China University of Political Science and Law Press, 1996.