Justice is not omnipotent, justice has boundaries
The topic of my talk today is "The Boundaries of Justice". With the development of the rule of law, students and teachers here are likely to become legal professionals such as judges or lawyers, so it is easy to see the judiciary as omnipotent.
The rule of law is important, but it is not the same as justice. The process of the rule of law is actually the coordinated operation of the legislative, executive, and judicial aspects, and also includes the operation of the whole society in informal systems and non-systems, which together constitute our rule of law. Therefore, when we talk about the rule of law, we cannot arbitrarily expand it and directly treat it as justice.
The judiciary plays an important role in today's society, but it cannot be regarded as omnipotent, so there is a boundary to the judiciary. Every system has its boundaries, and the effectiveness of this system determines its boundaries.
Students who have studied the "Anti-Monopoly Law" know that when a monopoly is carried out within a certain range, its income is the highest, but when the monopoly is too large, the profit of the monopoly will be reduced, so the large enterprise will collapse into a small enterprise.
Any system has a boundary, and the judiciary as a system, I oppose and criticize the judiciary as an omnipresent thing. We can look at the judiciary itself and the dispute resolution mechanism, why justice has boundaries, what factors affect it, and what is in our interest in limiting this boundary.
Starting from the simplest of daily life, we all encounter many disputes in life, but please note that these disputes do not have to be resolved judicially. First, then, consider the question: Why do disputes arise in social life, and how are disputes resolved?
The main forms of disputes – unclear property rights and rent-seeking
There are two main forms of disputes in social life: one is unclear property rights, and the second is rent-seeking, which can actually be summed up in these two types.
The lack of clarity in property rights is due to the fact that it is not known where the boundaries of rights are demarcated. Some of the original property rights were clear, but as time went by, they became unclear, or something happened that made the property rights unclear. For example, there is a barren slope behind my house, and if I open up the land now, will this land belong to me? Can others pass from there? At this time, the rights are not clear.
Therefore, some foreign scholars say that rights are not clearly defined, and this situation is obvious in daily social life. For example, marriage is a process in which property rights are not clear. After getting married, quarrels and quarrels are the process of constantly defining property rights. For example, after I got married, I went out to play every Friday night, and I always didn't come home until 23 o'clock, okay? For example, who cares about the remote control, when you fall in love, let the woman take care of it, and let you do everything possible, once you get married, he wants to watch the NBA, you want to watch Korean dramas but can't watch it, so when you fall in love, you must define it clearly.
Unclear property rights are the biggest problem that causes disputes. There are also many disputes that are not because of real material interests or real property interests, but only imaginary property interests.
Symbolic interests, imaginary interests, can lead to disputes. For example, when a male student and a female student go shopping, they will look at other girls, and the female student will feel very hurt, why? This is an emotional benefit, so the male student should wear sunglasses when he goes to the street, which is also a way to define property rights.
When you want to understand the law, you have to make it empirical, and then elevate the empirical thing to the generality of the law.
Another type of dispute is rent-seeking, which includes crime. The most general definition of rent-seeking is the consumption of social wealth and the transfer of other people's wealth to oneself. For example, try to pick the lock yourself and take other people's money. My labor force is part of the wealth of the whole society, but stealing other people's property is not labor, it is just transferring other people's wealth to myself, which is rent-seeking. Theft, rape, homicide, arson, etc., as well as civil torts, are rent-seeking.
We see crimes, torts, and minor offenses fall into this category. For example, if you run a red light, one person runs a red light, and others have to brake sharply or pay more attention, which is only convenient for you. The concept of rent-seeking is now often associated with corruption, the use of public power for one's own benefit.
What are the consequences of rent-seeking in the most general sense? That is, people don't follow the rules, so everyone will invest more to protect their wealth or personal freedom. For example, if I steal Professor Luo's property, not only Professor Luo has to increase his precautions in the future, but other roommates will also do the same, and a lot of wealth in society will be wasted.
However, things in the world are the relationship between spears and shields, such as murder, robbery and other behaviors have given birth to the police and the government, so we can't just see the cost of rent-seeking to society, because to prevent the rent-seeking system, society will invent some new systems to deal with the real problems in social life.
Many lawsuits are also rent-seeking. The most typical is what Hai Rui said, "It is better to plant fertile fields than to tell the state". There is money to be made in a lawsuit, especially when the evidence is unclear. For example, it is clear that Professor Luo has not borrowed money from me, so I went to the court to sue that Professor Luo borrowed 3,000 yuan from me, and I also found a Professor Li to testify against me.
Although I couldn't produce any special evidence, the court considered that I was the dean of the Peking University Law School and generally wouldn't lie, so I went to mediation and asked Professor Luo to return the 1,500 yuan. I may have spent 1,000 yuan on the lawsuit, but I earned the 500 yuan, and I spent 100 yuan to invite Professor Li to dinner, and I also earned 400 yuan. In real lawsuits, this situation will occur, and those who are litigating may not necessarily have been wronged.
The administration of justice must pursue compatible justice
If something goes wrong in a civil lawsuit, it is at most a matter of rent-seeking, and at most a wrong judgment is a wrongful assignment of property to someone else. Therefore, the requirements of the rules of evidence in civil procedure are relatively low. Criminal proceedings are different, it is the deprivation and destruction of social wealth, such as being locked up in prison and losing freedom, so the criminal law evidence must be ironclad, must be based on facts, take the law as the criterion, and must have strict evidentiary standards.
Even if there is a mistake in civil matters, wealth is transferred from one person to another, so in the rules of civil evidence, you just need to have a preponderance of evidence. Implicit in this is an essential problem: all litigants and parties to disputes are pursuing self-maximization. Therefore, the justice that can be defined by society and justice is not individual justice, but the justice that deals with the compatibility between the justice you feel and the justice that others feel.
Justice is not the justice of the individual, or even the majority. We often hear the saying that "not killing is not enough to outrage the people", but this is wrong, but the so-called justice of most people, in fact, the prisoner may not be so deserving of death, but as a result, he was deprived of his life because "not killing is not enough to be angry with the people".
Judicial justice should pursue compatible justice, and judicial justice is not equal to the justice of a certain individual, nor is it equal to the justice of a certain jurist. The above-mentioned disputes are common, many disputes are resolved by external intervention, and many disputes are not even visible. For example, sulking, shopping today, the boy looked at others a few more times, I sulked, and ignored you, this kind of dispute can't be seen.
In fact, our law can only resolve the part of the dispute, and there are very few things that the law can manage. I said, don't think that after the judiciary enters the rule of law, you will live a happy life, that is a sentence in Hans Christian Andersen's fairy tale, we can't enter Hans Christian Andersen's fairy tale, so it's impossible. Justice cannot resolve so many disputes.
Justice is only one of the various dispute resolution mechanisms
In the settlement of disputes, it is impossible not to talk about extrajudicial dispute resolution, including in the form of war, such as the defeat of Germany by the Allies. There are many dispute resolution mechanisms in social life, and they are inevitably related to the judiciary, which used to be said to "take up the weapon of justice", "fight for rights", etc., and regarded the judiciary as too powerful, as if all disputes can be resolved.
But if the judiciary can only resolve part of the disputes, then where is the judiciary in the face of those disputes that cannot be resolved? We must study it to know where the boundaries of the judiciary are.
Some dispute resolution mechanisms do not require judicial participation, and when the judiciary cannot resolve them, these disputes will not be automatically resolved, but will be transformed into other types of disputes and resolved in other ways. For example, disputes over loan relationships later turned into incidents of slashing people with kitchen knives, which turned into violent private relief.
Therefore, when we pay attention to the judiciary, we must pay attention to the dispute resolution mechanism before and after the judiciary. Everyone must have a broad vision so that they do not become too dogmatic when understanding the judiciary. The judiciary is only one of the various dispute resolution mechanisms, and it also has drawbacks and shortcomings.
All dispute resolution mechanisms complement each other and even eliminate each other in some cases. When we study law, we can't "sell melons and boast about ourselves", always talk about how good the judicial settlement mechanism is, and at the same time tell the parties that the judiciary cannot solve all their problems.
In all kinds of disputes, why do some show up and others don't?
Others don't see these disputes, such as sulking, but also many family disputes. On a societal level, when others see this dispute, its biggest problem is the question of private costs and social costs. The conflict between boyfriend and girlfriend is reluctant to be exposed, because it is more costly and embarrassing to expose. Many husbands and wives are reluctant to expose the contradictions between fathers and sons, an important reason is that they will have to rely on each other in the future, and if they are exposed, they will tear their faces, and the cost will be too great.
It is not that Chinese are unwilling to litigate, but in the society of acquaintances, Chinese are unwilling to litigate, once they arrive in a strange society, it will be easy to litigate, in which there are interests, the root of which is the relationship between personal costs and social costs. Even if the dispute is sometimes exposed, it is not necessary to resolve it by judicial means, and it is likely to prefer to resolve it by other means.
Therefore, let's not be overly superstitious about justice. It's not that the people don't dare to take up the weapon of justice, but that there are other dispute resolution mechanisms in this society, and if these mechanisms are destroyed, the judiciary will be in charge, and the judiciary will not be able to manage them. For example, if a husband and wife quarrel, whether the wife goes back to her parents' house to involve her father-in-law and mother-in-law, or goes to the leader, the people for mediation, or the judicial settlement, it is actually the self-choice of the parties, which seems to be irrational enough, but is actually a rational choice.
In the process of mediation, each party is considering its own costs and benefits. Therefore, as long as a certain dispute resolution mechanism is effective and relatively low-cost, people will choose it.
The boundaries of justice are related to judicial subsidies and fees
The Legislative Affairs Office of the State Council promulgated the standard of lowering litigation fees the year before last, and the original intention was also to make it easier for the masses to file lawsuits, but in fact it led some people who did not want to go to court to go to court.
Since 2004, the number of litigation cases in the mainland has been declining, but since last year, the number of litigation cases has been rising, and in some places it has even increased by more than 30 percent. There are two main reasons for this:
One is the reduction of litigation costs, and the other is that the promulgation of the Labor Contract Law last year triggered a lot of litigation. The stability of the law, including the stability of the fee standard for filing cases, is a prerequisite for ensuring that judicial cases will not increase excessively. The increase in litigation has only shifted to justice problems that could otherwise be solved.
When a large number of disputes are transferred to the courts, some other dispute resolution mechanisms will shrink, such as people's mediation and reconciliation, will be weakened. When we talk about the boundaries of justice, we want to pay attention to the problems on these "boundaries". The society is actually subsidizing the judiciary, and there is a big problem in the judicial settlement of disputes, that is, the judicial subsidy for dispute resolution, who is willing to go to court, the more the society subsidizes him.
Because the whole judiciary is the state taking money from all taxpayers to create a judicial system, so that people in dispute can use this judicial system to resolve disputes.
Although the court collects some litigation costs, these expenses are not enough to cover all the expenses of the court in the case, so part of the tax expenditure of the state is used to subsidize the judiciary. So in a sense, when some people are encouraged to go to lawsuits, that is to say, whoever is willing to fight more lawsuits will take advantage of more.
Just like I, Zhu Suli, never go to lawsuits, and Mr. Luo always goes to lawsuits, so Mr. Luo actually gets more subsidies in lawsuits than mine, and pays as much taxes, but I don't actually use this subsidy. So is the judicial subsidy fair? Therefore, the judiciary has to pay fees, which is why the issue of judicial fees is very important. To some extent, judicial fees discourage those who are willing to litigate desperately to litigate, and prevent otherwise very trivial disputes from entering litigation.
On the other hand, the role of judicial fees is a bit like collecting fuel fees, the farther the car goes, the more fuel it consumes, and the more taxes it pays, which is actually a usage fee. Therefore, there is also a fee for a lawsuit, and the more you use the court, the more you should pay, and you can also make up for the court's consumption in the process.
You must know that there is a reason behind these systems, and we must operate according to this principle. For example, the common "sending the law", sending the law to the countryside is okay, but there will be a problem in sending the law to the door, and the lawsuit will definitely increase in a large amount. The implication here is that if the state provides this form of litigation to resolve disputes free of charge, or at a low cost, it will lead to more litigation.
Why the cost of litigation is repeatedly passed on to society
In addition, litigants often pass on their litigation costs to other institutions in society, often to the media, to the government, and to government agencies. Everyone must pay attention to the fact that in real life, the situation of the weak becoming strong and the strong becoming weak has always existed.
Now there are many people in society who want to play the role of the disadvantaged group, and the private entrepreneur said: "We are the disadvantaged group, and most of the people who are blackmailed are those of us." The lawyer also said: "We are a vulnerable group because we are always angry at both ends. "Why are so many people vying to be vulnerable?
From simple reasoning, when everyone is vying to be a weak, he must not be a weak, which proves that there must be interests in these weaknesses. Everyone must think about it, many people disguise themselves as vulnerable groups, and they will definitely get benefits from them, such as sympathy from public opinion, preferential policies, and even financial subsidies.
As a result, many people will find ways to mobilize others to help themselves win in the lawsuit. It's like a man and a woman quarreling, the woman can't quarrel and go back to her parents' house, and then the mother's family appears, and social pressure comes. This method is still widely used today, and the biggest problem is reflected in the media.
Take the recent "Hangzhou drag racing case" as an example, this case is actually not complicated, a college student driving, said to be drag racing, hit and killed another college student who graduated for two years, in fact, it is a tragedy of a traffic accident. But now it has been hyped as "a rich kid killed a college student".
Sometimes the media steps in and complicates something that would otherwise be simple. In this case, what is the inevitable relationship between driving a car and killing a person and "rich kid"? But in the media, it has become a kind of pressure, demanding that this rich kid be severely punished.
Those of us who are engaged in law should clearly see that when the media intervenes, they are asking for the intervention of political forces, the political and legal committee, the municipal party committee, the municipal people's congress, and other departments to intervene and exert pressure on the public security bureau.
I'm not saying that this kind of pressure put on the police or the courts by the media and the public is not good, especially when there are powerful or bullies who bully the people. But if you always use this method, there will be problems. The college student who caused the accident was also an eighteen or nineteen-year-old kid, and now you want to make his traffic accident related to the rich, which is a lot of problems.
We should note that there are always people who like to transfer their litigation costs to other people, which is why many people do not go to the court when they have problems, they go to the media, to the political and legal committees, to the jurists.
Someone came to me and said, "I heard that Sa Beining is a graduate of your school, can you help me introduce Sa Beining?"
At this time, you will see that the parties do not actually believe in the judiciary, they are looking for the most beneficial way to resolve disputes, he comes to the law school seems to be looking for justice, but in fact he is looking for public opinion, he just uses justice as one of the ways to solve his disputes and maximize his interests.
But now there is a question: since many people are trying to pass on their own litigation costs to the state, society, and the media, why would society or a third party that is not a party still intervene and let others "be deceived" by transferring the litigation costs to themselves? In addition to being motivated by justice and conscience, many times, when people really intervene, it is also because they have benefits. For example, two people are sulking, and no one cares about him.
But if the two of you quarrel in the dormitory, at about 10 o'clock in the evening, the classmates in the dormitory next door will come over and say, "Don't make noise, it will affect my sleep!", and the intervention of the classmates in the dormitory next door is because the dispute between you is external, affecting the interests of others - the interests of sleep. So, I'm here to remind you not to make any noise.
The same is true when the state intervenes. It is true that justice is the best way to resolve disputes, but when the state resolves disputes, there are actually costs and benefits considerations. Disputes will affect the peaceful life of others, and if they are not resolved, it will affect social order; the state must crack down on robbery and theft, otherwise everyone will not dare to bring their wallets on the streets. A safe and peaceful social order is the most important thing for us, so the state is not only achieving justice, but also safeguarding the interests of the country.
The arbitrariness of judicial boundaries stems from the limited resources of the judiciary
For example, in litigation, we can say that every dispute is important, but why do we have to make a provision that "only a criminal case can be filed for theft of 500 yuan"? Why can't a case be filed if it is less than 500 yuan? At this time, we see that the state's judicial resources are limited and can only guarantee the most basic things in society.
Is there any harm in the government's strategy of not bringing all disputes into the judiciary? The government is not aiming to achieve abstract justice, although justice is the easiest way to resolve disputes, and excluding some disputes from being included in the judiciary, will it cause damage to society? Note that although the government does not allow some disputes to enter the judicial proceedings out of the balance of costs and benefits, this kind of trade-off by the government is beneficial and is not harmful to the whole society.
First, theoretically speaking, litigation itself does not increase the wealth of society, at least in the civil law system, because litigation is the distribution of existing property rights and interests, and does not create new wealth, so the society cannot spend a lot of money just to solve a problem of wealth distribution.
Development is the last word, so the country should use more money, time, and energy to develop, which is the most beneficial to the society, there has never been a country that only relies on justice to make the country rich, the lawsuit is at most a dispute between me and Professor Luo, fighting for 1000 yuan, in the end, you divide 400 and I divide 600, or you divide 600 and I divide 400, in the process of continuous consumption, not only their own consumption, but also pull the judge, first instance, The second trial, and sometimes the retrial, you see how much money the state invests in it.
But all the money of the state has an opportunity cost, and if it is used for litigation, it cannot be used to develop production, so it is impossible for litigation itself to create social wealth, at least from the civil law system.
Therefore, in this case of the civil law system, the state should not spend too much money to meet the whole society on the settlement of all disputes, this satisfaction is endless, if the dispute is filed for 400 yuan, the next 399 will come.
Therefore, there is always a boundary to be drawn, and this boundary is often arbitrary. There are some things that are allowed to enter the lawsuit, and some things that are not allowed to enter the lawsuit, and for the state, these are all trade-offs.
Weaknesses in the judiciary can be compensated for in other ways
On the other hand, we can find that a country with a relatively developed judiciary is not because it has a more developed legal system, but often because the society is relatively wealthy, can afford to support more judges and lawyers, and can provide more judicial services to the country.
In any poor country, the judiciary is relatively weak. But in such countries, there will also be other ways to resolve disputes. Isn't it bad to use other methods to make up for the weakness of the judiciary?
Due to the relatively narrow scope of judicial intervention, there is room for the development of other dispute resolution methods, such as mediation and arbitration. At present, disputes over international trade in China are often resolved by arbitration, and a large number of commercial disputes are also resolved by arbitration. Because they feel that arbitration is more efficient and more adaptable to the rules of commercial customs, and they do not have to go through the judicial process.
The same is true of mediation, we can see that a few years ago, when the mainland judiciary developed, mediation was in decline. From the late 80s to the 90s, the whole society was criticizing mediation, and it was not until the judiciary could not digest so many disputes that we remembered mediation again and began to re-emphasize that "if it can be adjusted, it will be adjusted, and when it is judged, it will be judged".
All dispute resolution mechanisms are complementary, so it is important not to assume that justice alone is at work in the operation of the rule of law.
When a country invests a lot of energy and wealth in the judiciary, it can easily lead to the shrinkage of other civil dispute resolution methods. Any society should pay attention to this issue, and it is necessary to have this concept of balance and grasp it from the perspective of society as a whole.
This is because what we want to build is the rule of law in the overall interests of socialism, not the pursuit of the development of a certain lawyer profession or the development of a certain judge's profession. The rule of law in the overall interest inevitably includes many dispute resolution mechanisms, including social insurance.
Justice is only the last line of defence for justice
When we are engaged in judicial work and research, it is especially easy to think that justice is the best way to resolve disputes, because "justice is the last line of defense for justice". How would you understand such a sentence? I think many of you here understand that "justice is the last line of defense for justice" as the most just line of defense, or the strongest line of defense.
In fact, the meaning of this sentence is that when it comes to the judicial stage, the dispute should be resolved, and it should be resolved, and it should not be resolved. However, justice has never been the most just line of defense, nor is it the strongest. It can only be said that it is the last line of defense, and the last line of defense has always been relatively weak.
When fighting a war, the strongest is always the first line of defense, and how can anyone put heavy troops on the last line of defense? I have fought as a soldier, and I know that heavy troops are always put in the forefront, and those who are placed last are usually cooks.
We are all legal people, and it is often easy to sanctify justice. However, we must recognize that justice is not necessarily impartial. If we concentrate all the cases on the judiciary, it is easy to form a monopoly phenomenon, and the inevitable result of monopoly will be corruption.
That is to say, when you firmly grasp all disputes, and the people have no choice or only have few choices, and can only rely on you judges to resolve them, the rights of judges may become the object of competition and corruption between the two sides.
This is why the judiciary must be restricted and not allowed to be controlled too much, that is, when you develop other social dispute resolution methods, it is possible to promote judicial integrity. If there are other ways of dispute resolution at the same time, institutional competition will emerge, and competition can promote the improvement of the court system.
Sometimes, the development of a system is not because it is strengthened, and weakening it can promote its development more. In addition, when the parties have a variety of choices, they can choose litigation, arbitration, private settlement or settlement, and his freedom is increased. At this time, even if the judiciary is not very clean, at least his freedom has increased, and he can choose other solutions to avoid the unclean judiciary.
As a member of society, we are not free when we can only take up legal weapons to protect our own interests when we encounter disputes, because we are forced to go to the law. We must not think that as long as we make the judiciary very clean, we can put all disputes in the judiciary. In that case, there would be no competition in the judiciary and no power for innovation.
Much of today's judicial innovation is introduced from other forms of justice than justice, such as reconciliation. If there is no way for people to hurt people and pay money, can a reconciliation system be formed? These systems do not come from within the judicial field, but from outside the judicial field. So don't think that the judiciary can have a monopoly and never can be monopolized.
The issue of China's judicial boundaries is still being explored
Of course, justice still has its advantages.
First, it has the financial support of the state, the state has training, and it is relatively unified, second, it has not only technical equipment, but also the support of administrative forces, third, it has trained professionals, and so on. But these only give it an advantage in resolving disputes, making it more suitable for resolving a part of the dispute. However, there are some disputes in which it is not suitable to intervene. For example, the judiciary should be involved as little as possible in family disputes, and it is better to intervene less in matters such as family children.
In contemporary China, how to determine a more appropriate boundary for the judiciary is still in the process of exploration, and we often try to explore it, and if it is more appropriate, we will relax it a little, and if we find that it is not suitable, we may shrink it.
We once made the boundaries of the judiciary a little bigger, but later found that the judiciary could not solve all the contradictions and disputes, so we began to advocate mediation, the concept of honor and disgrace, and the emphasis on arbitration. What we advocate, including justice, including other ways to solve problems, such as reconciliation, has slowly begun to enter society, and justice is no longer seen as the only correct way to solve problems, at least as it was 10 years ago.
As a lawyer, of course, we should be proud of our profession, and we are willing to dedicate our lives to this cause, but we are also social people, and we should observe this society with a broad vision, because we are not only for the prosperity of a profession, but for the cause of the rule of law in China as a whole, and for the prosperity of the whole China.
We believe in the rule of law, we respect the judiciary, and we have been engaged in justice all our lives, but we must know that if it has been proven that many of China's problems cannot be effectively solved by the judiciary, then if other ways can be solved, we should pursue other solutions.
You can't say that you think Lin Chiling is good, so you will pursue Lin Chiling all your life, right? Lin Chiling ignores you, and then you pursue hard there all your life, in fact, you can also pursue others.
The author of this article is Su Li, a professor at Peking University Law School