对“通过重塑司法权威化解民意审判”之批判

Criticism of “Resolving Trial by Public Opinions through Remolding Judicial Authority”

面对民意对司法的影响,学界有观点认为需要通过司法权威化解舆情审判,但这种观点在事实认知上模糊了影响案件判决的因素和影响司法权威的因素;在经验依据上高估了美国司法对民意的抵御能力,并且忽视了程序对民意的吸收;在理论证成上片面的理解了权威并错置了司法权威与民意认可的因果关系。化解民意对司法的干预不应该沿着司法权威的道路,相反,司法权威应的树立应当探寻民意认可的路径。

For public opinion during the judiciary, some scholars think that we should use judicial authority to solve this problems. However, this opinion is not right. In fact, it blurs the factors which affect the case and the factors which affect the authority. In experience, it overestimated the American justice, which is not that strong, and it ignores the procedures function, which absorbs the public opinion. In theoretical justification, it reverses the cause and effect of authority and public opinion. To solve the problem of public opinion, we should not use authority, on the contrary, to rebuild the authority, we need explore the path of public＇s recognition.