Abstract

Amid heated debates over uncurbed corruption in the judiciary, over professionalization or popularization of the people’s judge, lack of transparency in the judgment making process, independence of the judiciary, and so on, a new round of judicial reform was launched in March 2009 with the release of “Third five-Year Agenda for the Reform of People’s Courts” by the Supreme Court of People’s Republic of China. Few in-depth studies have been done however, to reveal the relationship between these controversies and legal reasoning as a basic skill of legal practice and research. This paper compares and analyzes how the allied Swiss and Chinese legal systems facilitate justice through reasoned judgment, and concludes that legal reasoning is a structural weakness in the Chinese judicature, legal education, and legal scholarship, a deficiency which is the root of various problems fueling current debates. The purpose of this paper is to give recommendations to China’s legislature, judiciary, and legal education policy makers for how to strengthen legal reasoning and thereby rule of law within the on-going legal reform.  

I. Introduction

Legal reasoning is defined in this essay as “the arguments that judges give, frequently in written form, in support of the decisions they render. These arguments consist of the reasons for the decisions, and these reasons are intended as justifications for the decisions.”

Judicial decision-making is a process of rule application: the court applies certain rules to the facts of a case involving issues which come before it, and it must reason through all stages of this process to justify its conclusions; if applying law to facts is the principal purpose of every system of modern civil justice, such purpose can only be reached through legal reasoning. Such legal reasoning needs to be tight without leak in order to sustain the questions of the parties involved and the scrutiny of the general public. Legal reasoning which occurs haphazardly in a judgment is neither likely to justify nor to convince. In fact, an unsystematic approach will in most cases lead to the wrong conclusions of law. A well-developed legal system usually has a well-developed intrinsic reasoning method in place to guarantee efficient decision making and just legal solutions.

Systematic and disciplined legal reasoning is the best way of self-monitoring for the judge in search of justice. It is the basis for an effective judicial review, because the duty of the appellate instance is, to a large extent, the reexamination of the legal reasoning by the lower instance. The parties in a case need to be able to read the legal reasoning as a check on the judiciary and for purposes of appeal. Parties can see through the legal reasoning whether the decision took account of biased, irrelevant considerations, or excluded relevant considerations. Rule of law requires that a case be decided based on a judge’s reason and not a judge’s whim, primarily because a decision based in reason is one that can be respected and accepted by a winning party and losing party alike.

When the legal reasoning in a judgment is published, particularly for a leading case, it serves moreover as a basis for the public monitoring of judiciary generally. People evaluate the judges on the quality of their legal reasoning - flawed reasoning points to a lack of professionalism, bias or corruption. Conversely, published case reports with convincing legal reasoning demonstrate to the public how laws are applied by the courts, disseminate current legal information and enhance legal certainty. Should people become involved in disputes, a well-reasoned judgment can provide a guideline for parties to settle their disputes before bringing suits. As a result, the case load of courts can be significantly reduced.

In summary, if a judgment is the narrative of proceedings, the legal reasoning tells how fair the proceeding was. Legal reasoning makes plain the formal and material correctness (or incorrectness) of the judgment, and as such is irreplaceable at both the individual and public level.

Over the last thirty years, China has experienced a significant improvement in the reconstruction and development of its legal system. However, a lack of legal reasoning is still a common phenomenon among Chinese court decisions, of which even the People’s Supreme Court judgments are no exceptions. The purpose of this essay is to examine the mechanisms in the Swiss and Chinese legal systems which facilitate justice through reasoned judgment, and discuss how Chinese courts can, in the course of further reform, improve legal reasoning by learning from the Swiss practice.

The examination and discussion in this essay follow basically the functional method of comparative law described by Konrad Zweigert and Hein Kötz. According to this method, comparative legal study begins with (1) the definition of a problem; (2) selection of legal systems for comparison; (3) and selection of the respective materials for purpose of comparison. The comparison is not merely a characterization of this law in the first half of the paper and that law in the other half; rather, the comparison should be (4) focused on how the problem is approached in the two legal systems, and the different approaches are to be described neutrally according to a scheme created to fit in both legal systems. Only after the neutral presentation of the differences and commonalities can (5) the analysis and evaluation be performed.

The subtitle of Zweiger & Kötz’s standard reference shows that the functional method is first and foremost developed for the comparison of private law. The authors recognize from the very beginning that the right method for the specific case will always have to be sought out by the comparator itself. Since the comparison of legal reasoning involves public law (especially procedural law), I allow myself to be additionally inspired by the Swiss Professor Axel Tschentscher, who propagates a dialectical method for comparison of public law.

Professor Tschentscher criticizes the functional method for its puristic separation of Step 4 and 5. For in the context of public law, as opposed to private law, a neutral perspective is little more than a fiction. Also technically, it is neither natural nor necessary to separate neutral presentation and judgmental comparison. The dialectical method of Professor Tschentscher therefore, merges Step 4 and 5 of the functional method into one. Personally, I found it difficult even at the stage of creating the frame of reference for the comparison not to be influenced by the Swiss perspective, the point of view of the country where I enjoyed my legal education and practiced as a lawyer. It is hardly possible not to approach another legal system without any previous knowledge of your “own.”

Combining the traditional functional method with the dialectical method, Part I of this essay justifies the comparability of Chinese and Swiss legal systems and representativeness of the selected cases as the basis for comparative analysis; Part II presents the scheme, the frame of reference for the comparative study; Part III describes legal reasoning in the Swiss legal system, putting emphasis on the style and reasoning of Tribunal Federal appellate judgments; Part IV describes, analyzes and comments on legal reasoning in the Chinese legal system, with emphasis laid on the style and reasoning of Supreme Court appellate judgments; Part V concludes the foregoing and makes recommendations on how to improve Chinese courts’ legal reasoning by learning form the Swiss practice.