In the face of the law, is public opinion retreating or is it pressing step by step?

"If there is no public opinion supervision,

There is no way for the parties to change their unfavourable negotiating position"

Beijing News: The relationship between public opinion and the judiciary has become the focus of attention every time a case is concerned, and the differences that exist have persisted over the years, such as the fact that some views interfere with judicial independence, and some that it plays a supervisory role. There are supporters on both sides, and both have their claims. What is the relationship between public opinion and the judiciary in the actual operation of the judiciary?

Ji Weidong: There is a premise for the independence of the judiciary, that is, the judiciary itself has legitimacy, or it enjoys full social trust. On this basis, the judiciary must be independent not only from the intervention of other organs, but also from public opinion, which has incomplete information and is often influenced by emotions, and it is dangerous to make judicial decisions based on public opinion.

However, if the supporting conditions of the system are not complete, such as the formulation of laws without sufficient democratic procedures and expert argumentation, and the content of the laws is out of touch with the people's sense of justice, or lacks rigor and coherence, some problems may arise when it comes to application. Legislation fails to fully reflect public opinion and reality, and people hope to reflect public opinion and reality in the process of handling cases, which leads to public opinion constantly exerting influence on the judiciary. In a certain sense, it can be said that this kind of influence is actually a bit similar to one thing and one legislation, so under the influence of public opinion, there will be many local versions and individual versions of the law.

From the perspective of institutional economics, if legislation is enacted for each specific case, then the legal system will lack coherence and uniformity, and the state of constant bargaining over trial standards is obviously uneconomical, inefficient, and may not necessarily achieve justice. If every case is dealt with in a way that initiates some kind of quasi-legislative process, where everyone talks about it from all angles, the law is bound to become fragmented and fluctuate with the mood swings.

Beijing News: Many parties concerned will pin their hopes on the attention of public opinion.

Ji Weidong: When there is obvious judicial injustice, if there is no public opinion supervision, there is no way for the parties to change their unfavorable negotiating position. If the role of lawyers is restricted, the voices of the parties cannot be fully reflected in the trial process and judicial decisions. In this case, if all public opinion around the trial of individual cases is opposed, there will be problems.

However, we must also realize that although it is understandable that the practice of having to tacitly appeal to public opinion due to the lack of supporting systems, it will indeed bring about various adverse and far-reaching effects. One of the biggest effects is that since public opinion can influence the application of the law, in fact, public opinion itself becomes the judge and the law, and society will eventually slide into a state of lawlessness.

Through a series of narratives and interpretations, Ji Weidong has established the constructive legal stance of neo-proceduralism, embedding the unique multi-layered diversity, relationship networking, partial and overall isomorphism, and interaction of Chinese society into the understanding and top-level design of the reform mechanism.

Beijing News: The law itself is incomplete, can it be regulated by the judiciary? How do you understand the "system mismatch" you mentioned?

Ji Weidong: The law itself is incomplete, and it has to be adjusted according to reality when it is actually operated, but the adjustment will cause the court to exercise too much discretion, which may lead to judges being in charge and promoting judicial corruption. The paradox here is that the judge's mechanical application of the law will be out of touch with social reality, but giving him room for inspiration may lead to greater discretion and even abuse of his free will.

It is possible for the law to be flexible without being abused. The first is the need for a fair process, through open debate, in which all the reasons are laid out, and the most probative and convincing claims are left after mutual argumentation, so that there will be fewer errors in judgment and even if there is a problem, it will be easier to discover.

The second is legal interpretation and legal reasoning, which not only enables the use of legal provisions to be carried out in accordance with strict rules of argumentation, but also has the flexibility to make adjustments according to specific circumstances. But now, procedural fairness is underestimated, transparency is not very high, the role of lawyers is limited, and the knowledge of legal interpretation is not very developed. Since the 1999 outline of court reform, most initiatives have emphasized judicial efficiency and consequential responsibility, while ignoring the links of debate, reasoning and interpretation. In addition, if the quality of the judges is not very ideal, the trial and judgment will lack wisdom, skill and a sense of justice, and the judgment may be very rash and crude.

In addition to acknowledging the supervision of public opinion,

Better institutional instruments should be found

Beijing News: Lances · Fukuyama said that there are three key elements in the development of the modern political system, the first is state (executive) power, the second is the rule of law, and the third is democratic accountability. You've had a conversation, and you agree with him. Is the "public opinion" or "public opinion" we are talking about now a kind of democratic accountability?

Ji Weidong: To a certain extent, supervision by public opinion certainly has the meaning of democratic accountability. Because public opinion can discover problems, amplify demands, attract the attention of society and the government, and urge higher-level organs to investigate and deal with them, this will have the effect of democratic accountability. For example, in some hot cases that we know, if there is no pressure from public opinion, the procuratorate or other joint working groups may not enter the investigation, and the higher-level supervisory organs will not take action. All this shows that public opinion around the trial can indeed play the role of democratic supervision.

Of course, the democratic accountability we want is carried out within the framework of the rule of law and through the use of various institutional mechanisms, not in a haphazard manner. Public opinion is a form of democratic accountability, but it is not a stable and mature kind, because it has an emotional part, and the people involved in the formation of public opinion do not have sufficient information and knowledge, so it is inevitable that bias will occur. In other words, in addition to acknowledging the role of public opinion supervision, better institutional means should be found for democratic accountability. However, if we do not have such institutional conditions, or if there are functional barriers even if they do, then we have no choice but to rely on the power of public opinion.

Beijing News: However, "public opinion" may attract the attention and attention of higher functional departments, and the grassroots usually respond in a way that maintains stability, including giving material compensation beyond the scope of the loss of rights and interests of the parties concerned, so as to stabilize public opinion. But once things pass, they often pass.

Ji Weidong: Yes, the relevant authorities are often accustomed to using various methods to settle an incident, focusing only on specific tricks, but they do not have the will to solve the problem fundamentally, have no clear concept, and do not have a reasonable arrangement for the system as a whole.

As a result of tearing down the east wall to make up for the west wall, and temporarily clinging to Buddha's feet, the problem of grassroots governance is out of control, and even a crisis of law and order is brewing. When power is out of control at the grassroots level, it becomes difficult to exercise power, or those who hold power are reluctant to act, and when this state reaches a tipping point, problems erupt. If the authorities only resort to various expedient and informal means to maintain stability, it will eventually lead to a loss of credibility and further raise doubts about the impartiality of the judiciary.

Judging from the theory and practice of modern rule of law and the historical experience of other countries, these problems are not unsolvable. There is a rhetorical logic in China that "because there is judicial corruption, the judiciary cannot be allowed to be independent", which is paradoxical. Under the principle of judicial independence, there are many ways and means to prevent the emergence of judicial corruption. For example, the openness and fairness of the trial process, adversarial debate, allowing lawyers to play a professional supervisory role, and allowing judgments to list the arguments and objections of legal reasoning, etc. Such institutional arrangements can make the supervision and accountability of trial activities more effective, and the institutional costs are not high.

Beijing News: How should these public opinions be treated?

Ji Weidong: In the traditional Chinese system design, "the one who gives birth to the law is also the king; Law-abiding people, ministers; Those who are in the law are also the people." This is the basic viewpoint, so it is necessary to "take the law as a teaching and the officials as teachers" for the people. In order to avoid differences in the understanding of the content of the law, it is also emphasized that full-time officials are responsible for interpretation, and the act of civil lawyers providing legal services to parties is prohibited.

If the rule of law is implemented in this way, the cost of the system is bound to be very high, and it is easy to create a situation in which cool officials run rampant. Therefore, in the course of the socialist revolution, the "judicial mass line" was advocated, which mainly meant that judicial work should rely on the masses, but it also showed that the opinions of the masses were biased over the law. We have to admit that such a judicial mass line will one-sidedly emphasize public opinion, and even lead to a "mass trial" in which public opinion determines judicial judgments.

The institutional design of the modern rule of law shows an alternative approach, that is, to encourage aggrieved individuals to use the litigation system to mobilize the law to defend their rights and interests, because they are most motivated to uphold legal norms and are most willing to bear the costs of the operation of the legal system. Lawyers play a key role in the mechanisms for the implementation of the rule of law through individuals, particularly in the guarantee of rights through procedures.

Proceeding from the concept of modern rule of law and China's actual situation, and in the orientation of the reform of the judicial system, I believe that it is advisable to advocate a "new type of judicial mass line", that is, on the basis of the specialization of judicial work, the initiation button of various specific judicial procedures should be transferred from the hands of functional departments to the hands of the parties and their lawyers, and the illegal acts should be supervised and sanctioned through the positive motives of individual citizens to protect their legitimate rights, so that legal norms can be implemented. In this way, the impetus for the application of the law will not be top-down, but bottom-up, and democratic accountability will be institutionalized.

The principle of a modern rule of law state is to support a pluralistic power structure with a unified legal system, so that the system design of separation of powers and checks and balances can operate freely and harmoniously through unified legal rules.

Professional lawyers play an important role in judicial practice

Beijing News: You have mentioned the pivotal role of professional lawyers in judicial practice in many places, such as that equal and open court arguments can help overcome corruption in trials, but they are also sometimes controversial. Do you have concerns?

Ji Weidong: We also know that the current situation in the legal profession should not be too idealistic about lawyers, and there are indeed grey market transactions in which lawyers and judges collude. Under such circumstances, if we emphasize the role of lawyers one-sidedly, we can really achieve the ideal goal of justice, which is indeed a question. I totally agree with your concerns.

However, as long as there is an open market for legal services, lawyers' loyalty to their clients and loyalty to the legal order will be balanced by a competitive mechanism. Both parties seek counsel, and as long as the competition is technical and conducted in public according to clear rules, some of the drawbacks will gradually diminish or even disappear. In other words, as long as there is procedural fairness and open legal reasoning, it will be very difficult for lawyers to misbehave, and the professional ethics of striving to protect the rights of clients will become the driving force of the humanistic spirit of the lawyers. In addition, it is also important to emphasize the humanistic spirit and the professional ethics of lawyers in legal education and judicial examinations, and to encourage lawyers' public interest activities.

Beijing News: In the "Dean's Message" at Shanghai Jiao Tong University's Kaiyuan Law School, you hope that law students "should pay attention to exploring the fundamental principles of existence, pursue justice and value implications, and inquire about the reasons for justification arguments." "The law is not only a textual provision, but also the justice and value behind it, and what a lawyer should have is not only a technology, but also a humanistic spirit.

Ji Weidong: If the judiciary is indeed open, the procedure is indeed fair, and the two sides are equal in the arming of the law, and they compete, reason, and adduce evidence in public, it actually makes it very difficult for legal people to trade in the grey market. Even if lawyers are for personal gain, they will not become too bad, and the requirements for lawyers' credibility, humanistic spirit, and professional ethics such as the lawyers' community and public evaluation are constantly being raised. If the credibility of the society declines, it will no longer be bought, and all this creates pressure.

The implementation of the humanistic spirit and professional ethics in legal education and examinations means that if both "an open and competitive legal service market" and "detached humanistic spirit and professional ethics" are possessed, the professional quality of lawyers will be improved.

Observing phenomena from the perspectives of mutual intuition, human morality, and social justice, we continue to think about and discuss some basic issues in legal theory, and develop a new institutional arrangement of procedural democracy based on communication, mutual understanding, and overlapping consensus.

The consensus of the law is that

Everyone has equal rights and dignity

Beijing News: Our theme today is "Law and Society", and finally back to a basic question, please talk about how to look at law from the perspective of society. "Law is the embodiment of the will of the ruling class", but now more emphasis is placed on law as a social contract. What's the difference?

Ji Weidong: Your question is still very important. I raised a similar question in my critique of Vyshinsky in the early eighties, although it was not as clear as it is now. Emphasizing the will of the ruling class, the basic concept of law and society will focus on struggle, which is theoretically a mode of dispute. The emphasis on sociality and commonality is theoretically a consensus model. There is a fundamental difference between the two.

When the law is seen as an expression of the will of the ruling class, the emphasis is on the differences and asymmetries between classes, which inevitably leads to class justice. It is understandable to say that this is to expose the hidden dark side of a certain system, but it is also unwise to use it as a basic model for institutional design. Because class justice inevitably leads to an alternative understanding of judicial justice, the universality of law and justice is denied, and the universal binding force of legal norms is also weakened.

Even from the point of view of Marx's theory, despite the emphasis on class analysis, the analytical framework of historical materialism leads to an emphasis on the conditions of life and the economic base, which will focus our attention on the objective conditions and the mechanism of the synergy of various wills, which are not subject to the subjective will of man, and thus to the problem of the commonality of society. Today we emphasize the rule of law, and of course we should seek the greatest common divisor of society as the basis for the legitimacy of legal norms, and not the other way around.

Beijing News: It should be said that the transformation has been completed at the level of legal awareness. However, in real judicial life, there are indeed similar thinking that affects people's thinking, such as "bad people", "cheating people", "people with bad character", are "enemies" and should not enjoy equal rights and dignity. What is our legal consensus?

Ji Weidong: The main function of the law is to coordinate the behavior of all people, so it is necessary to adopt a scale that can be accepted and recognized by everyone. Of course, some parts have class interests and ideological aspects, but in order to be recognized in society, it is necessary for people to understand and support them, so the lawmakers and implementers must have concepts and communication words that transcend class interests and ideologies. Only in this way can legal norms be truly effective and can they be consciously followed by the majority.

What are the characteristics of the rule of law? In the final analysis, it is twofold: on the one hand, it is to maintain power, and on the other hand, it is to limit it. What does a country rely on to make the people listen to you? How can a game of chess in the whole country be formed? Of course, the rules of law are needed. The functioning of the bureaucracy requires the rule of law. If all people, including power itself, must act according to the rules of the law and cannot act arbitrarily, then power is limited.

The fact that everyone is equal before the law and that no person or group has any privileges is just and can be justified. It is precisely because the rule of law restricts power, is reasonable, is just, and is based on recognition and consensus that the rule of law can be regarded as an authoritative system. In this sense, it can also be said that the intrinsic essence of the rule of law is the duality of maintaining power and limiting power, which embodies the paradox of power gaining authority through being restricted. From this perspective, the implementation of the rule of law can promote a steady and orderly political reform in China, and is the key to a soft landing of the country's institutional transformation.

Text/Ji Weidong