Reasonable Justice Is an Effective Way to Resolve the Conflicts Between Emotion and Law: A Multi-dimensional Exposition of Difficult Criminal Cases Based on Reason
Liang Jian1, Hou Liwei2
1.Guanghua School of Law, Zhejiang University, Hangzhou 310058, China 2.Political Department of Tongxiang People's Court, Jiaxing 314500, China
Abstract：A conflict would sometimes appear between “case justice” and “judging according to law”. The dilemma of the kind arises in that conflicts exist between the stability and justice of law, from the perspective of jurisprudence, whereas there is no perfect match between the legal rules and social life, from the perspective of legislation. And from the perspective of judicature, it seems not an easy job for jurisdiction to find out an exactly effective approach to a proper application of requirements of reason and emotion into judicature. Therefore, the judicature with the ideal application of reason and emotion which aims at producing corresponding judicial judgment is supposed to obtain such properties as the thoroughness of reasoning, the legitimacy of values, the supplementary of rules, the needs of execution and the practicability of approaches. Justice based upon reason and emotion uses thinking in both reason and emotion to deal with the conflicts between emotion and law by unifying reasonable and emotional evaluation and regulation evaluation, which is not only the inheritance and development of traditional judicial culture but also an effective way to respond to people’s reasonable and emotional value demands. Justice based upon reason and emotion needs the justification foundation for resolving conflicts between emotion and law. It is necessary to search for the law resources of reason and emotion beyond the legal rules, paying attention to the embodiment of people’s ethical demands and emotional demands in the judiciary, promoting a benign interaction between reasonable evaluation and regularity evaluation, be ready for discovery and judgment based upon reason and emotion in the process of criminal adjudication, maintaining it in the track of the rules of law. Instead of mechanical application of law or judicial technicalization, the conscious and active application of rational and emotional justice is the necessary process of the demonstration of the judiciary’s “spirit” and “temperature” of the referee that not only tends to make a simple formal logic inference, but also needs to incorporate the reasonable needs of value judgment and benefit measurement to reflect the reasonable core of a fair referee. The judicial personnel need to rely on the judicial conscience, exert their own judicial wisdom, place justice within the scope of ethics and above public emotion through the process of keeping pace with the times to explain the law, and make a judgment that fully reflects the needs of reason and emotion within the existing legal framework. Only in this way can the judicial judgment be accepted by the people. The acceptability of referee is the success of reasonable justice to resolve the conflicts between emotion and law. To enhance the acceptability of referee, much attention needs to be focused upon the following five points: the first, reasonable evaluation is the link between legal conviction and ethical conviction; the second, the social harmfulness is an important consideration for the criminalization of legislation and the criminalization of justice; the third, the integration of rational thinking into legal interpretation is the inherent requirement of referee acceptability; the fourth, a full use of the “discretionary reduction” regulation to resolve the conflict between emotion and law; and the last, enhancement of the reasoning and moderation of the rhetoric of judgment documents. This paper has a practical guiding significance for solving cases of conflicts between emotion and law in judicial practice.
梁健, 侯立伟. 情理司法是化解情法冲突的有效路径[J]. 浙江大学学报(人文社会科学版), 2023, 53(1): 65-79.
Liang Jian, Hou Liwei. Reasonable Justice Is an Effective Way to Resolve the Conflicts Between Emotion and Law: A Multi-dimensional Exposition of Difficult Criminal Cases Based on Reason. JOURNAL OF ZHEJIANG UNIVERSITY, 2023, 53(1): 65-79.
2023, Vol. 53 
