Social Sciences in China (Chinese Edition)

No.6, 2017

 

The Application of Judicial Methods in Adjudication: Supremacy of Legal Rules, Principle-based Judgements and Assessment of Consequences

(Abstract)

 

Ren Qiang

 

Together with principle-based judgements and assessment of consequences, the supremacy of legal rules provides effective analytical tools and methods of adjudication that enable judges to deal with different types of cases. “Supremacy of legal rules” means that judges must abide by the meaning of the letter of the law. As the general rule governing the operation of modern justice, this is the fundamental requirement imposed on judges in a society with rule of law. A judgment that deviates from legal rules or the letter of the law is simply a special case or an exception. However, when legal rules are unavailable, or compliance with the literal meaning of a legal rule mean that no judgment or only an unfair or absurd judgment is possible, or the conflict between different rules leads to impossible choices, courts need to invoke legal, moral or political principles that contain value judgments. In tricky cases that are not covered by legal rules and are not related or only remotely related to the three types of principle mentioned above, where there is a conflict between legal rules, principles or interests, or where common sense is violated, possible consequences must be weighed before any judgment is made. The three types of judicial method can be used separately or together, but applying them together can make the ruling more persuasive without damaging the independence of judicial method. Differences in judicial method constitute the basis of judgments.