制度變遷和中國法官行為選擇:從社會控制到價值共識

Abstract

This study uses the method of institutional analysis to analyze the positioning and evaluation of Chinese judges' individual behavior choice, that is, the social function of judges' behavior in the context of governing the country according to law, in order to explore the relationship between judges' behavior choice and maintaining the stability of institutional order. The rule of law needs to rely on the mandatory control from the perspective of functional pragmatism or the conscious compliance under the value consensus and agreement of the members of the whole society.

Although judges in every country need to find the authority and certainty of judicial decisions between the uncertainty of law and the rationality of justice, the legitimacy crisis faced by Chinese judges' individual behavior choice seems to be more complex. What in the end leads to the self-identity of judges' living environment, the reduction of social identity and the low operation of the effectiveness of judicial decisions (the automatic performance rate of judicial decisions), more and more cases, the expansion of internal institutions from the expansion to the reform of large department system, and more and more social evaluation and assessment. Is it enough to rely on the efforts of courts and judges to solve and change this practical dilemma? Do these have anything to do with the system?

At present, the dilemma of judge's behavior choice in China reflects the legitimacy crisis faced by the court organization as a public authority. As a subsystem composed of political structure, the behavior choice of courts and judges is faced with the current situation that they need to prove the legitimacy of their own behavior, and even this demand can objectively hinder the implementation of effective judicial decisions. From the perspective of public opinion, this crisis is often attributed to the adaptive perspective of court organizational structure, judges' personal ability and institutional environment, and then attributed to the judges' individual behavior choice, which is supplemented by the judicial responsibility system of lifelong accountability. Under the current system, how to treat the judge's profession and behavior correctly? Is the authority of judicial decisions obtained by the hard work of judges or given by the system? Is the judge's correct behavior choice to maintain social stability and development through meticulous mandatory control, or to promote the formation of social value consensus and maintain the dynamic stability of institutional order? There is an urgent need for in-depth observation and analysis of this problem at the theoretical and practical levels. In this sense, institutional theory provides a basic theoretical and practical analysis method to analyze the interaction between institutional environment and individual behavior choice of special occupation.

Institutional definition is the most complex concept. The basic theory of institutional research holds that all social outcomes are the product of human behavior and social structure, and social action includes the interaction of instrumental factors and normative factors. The theory of institutional change in a broad sense is a framework that integrates actors (people), ideas, conflicts of interest, power conflicts, social movements, rationalization / legalization and artificial choice. This integration promotes social development and change through the two-way interaction between people (actors) and institutions, which may sometimes be retrogression and collapse. Traditional institutionalists emphasize the importance of conflict of interest, power process, information structure, value, norm and social commitment, while the new institutionalism of organizational analysis emphasizes the importance of cultural and cognitive process, convention and schema, legalization process and formal structure.

Scott integrated various research directions of previous institutional analysis, incorporated organizational research into institutional analysis theory, and put forward an institutional analysis model to straighten out the relationship between the system restricting actors and individual agents. Scott's institutional analysis model determines that the elements of the system include regulatory, normative and cultural cognitive elements, and defines the differences between the three basic assumptions, mechanisms and operation signals. In different social systems, these three elements interact with individual and collective actors at six levels of state nation, society, organization field, organization population, individual organization and organization subsystem through symbol system, relationship system, convention and artifact, and can shape individual behavior patterns alone or jointly through power support, At the same time, we accept the initiative feedback of individual actors and jointly complete the process of institutionalization, that is, the process of social structure, the realization and protection of collective interests. This is a cycle of institutional change process of institutional construction, diffusion, maintenance, innovation, reform or drastic change. During this period, the three elements form a strong and flexible social framework in a way of mutual support and mutual reinforcement. In this process, the system completes the guidance, imitation and restriction of human behavior through the embedding of organizational purpose, organizational structure and organizational procedures. The organization relies on the collective action of individual behavior choice and the legitimacy authority of organizational field competition to complete the institutional task and innovate the system. The behavior choice of institutional system shaping actors (including individual actors and subsystem collective actors) is not only a top-down process of institutional communication and diffusion, but also a process of actors' behavior choice actively feeding back the authenticity of social system life and innovation and change from bottom to top, that is, restricting and enabling individual behavior choice through institutionalization, structure and organization. The social system evolves and evolves on the basis of institutional order. When public institutions maintain the stability of institutional order, the authority and legitimacy of the behavior choice of organizations and their individual members will arise.

The dilemma of judge's behavior choice shows that the legitimacy of judicial power has been challenged. The issue of power legitimacy focuses on the issue of "explaining or proving that the social order is reasonable, and the institutional arrangement is subjectively reasonable through this interpretation and proof", that is, the issue of promoting actors to implement actions by positioning actions in "an understandable and meaningful world". Legitimacy behavior and rationality behavior are variables, not assumptions. Legitimacy has the characteristics of responsibility, clarity and authorization. The legitimacy of organizational function comes from the legitimacy of the organization in the specific institutional order at the upper level. Organizational legitimacy is directly related to the legitimacy of individual sexual behavior choices of organizational members. Legitimate behavior is closely related to rationality, effectiveness and authenticity. Rational behavior has many forms. Instrumental rationality, value rationality and moral rationality can become legitimate behavior through the declaration of the legitimacy of power. The legitimacy of the behavior choice of public institutions directly affects the effectiveness of relevant systems. Moreover, legitimacy and effectiveness are often decoupled from authenticity in social life.

As the exercise organ of the national judicial power, the court solves the problem of maintaining the effectiveness of the institutional structure. Rationality and authenticity are the basis of judgment and cannot challenge the effectiveness. The court organization is endowed with the instrumental pragmatic institutional function of mandatory social control, which can be called the vocation, which is a constant quantitative, while the ability and quality of judges and their social environment are variables compared with the institutional function of social control. In this case, we also need the self-implementation of the system under the guidance of value consensus, because the attribute of power determines that the improper use of compulsory social control will inevitably lead to tyranny. On the one hand, it will lead to more fierce resistance among social members, leading to the rupture and collapse of political, economic and social system order, on the other hand, it will be accompanied by huge social law enforcement costs, the objective emergence of the negative function of allowing the legal person to pay for the violators, which hinders the normal development of society. The stronger the mandatory system, the more obvious the characteristics of instrumentalism and pragmatism, and the higher the cost of social governance. Therefore, under the premise of controllable social aspects, the more institutionalized and structured society based on social consensus and value consensus will last for a long time, with small litigation volume and powerful guiding function, which is more effective for the maintenance of social order and social structure stability. In particular, it needs to be emphasized that the promotion of social value consensus here is not only social value consensus, that is, we cannot abandon the bottom line of political and economic order for consensus and cater to individual interests. This is also the basic bottom line of the rule of law and law as collective action. At the micro level, in the process of organizing collective action and individual action choice, we must face the game between short-term interests and long-term interests, so it is normal to have the repetition of short-term system. Pareto optimality makes the assumption that after a lot of analysis on the cooperation of prisoner's dilemma like social interaction, It is proposed that "in a single interaction, the dominant strategy is not to abide by the rules, and the rules can be self implemented and maintained stable. It is only possible when abiding by the rules can solve the game of prisoner's dilemma for many times" to explain the collective action attribute and universal significance of the system. Losing the universal significance of the system and relying heavily on the mediation and negotiation decisions of one case and one policy in the same type of cases to seek the settlement of the case and pacify the people will inevitably lead the problem to another nihilistic extreme freedom. Under the environment of uncertain market capital needs and profit creation, Obviously, it can not solve the uncertainty of social conflict, which is the eternal ruling practical problem of all mankind. Pressing the gourd floats the ladle, and even causes an impact on the institutional authority and the identity of the ruler. Therefore, when uncertainty has become an inevitable attribute of society, it is unrealistic to require judges to give full play to their initiative and completely solve disputes. Because a large number of informal normative rules will play games with formal rules, evaluating the rationality of judges' behavior choice by means of public opinion polls, voting behavior and the number of letters and visits will inevitably restrict their initiative, enthusiasm and legitimacy, and lose the dominant action advantage of implementing legal rules and imposing them on others when exercising judicial power on behalf of the national collective. Succumbing to the short-term interests of individuals and their closest groups and abandoning the long-term interests of the system is bound to be unfavorable to the long-term stability and progress goal of the system order. At the same time, rigid compliance with institutional rules will also make the institutional framework and order lose flexibility: lose the tolerance and incentive for innovation.

The social institutional structure provides solutions through social action. With a clear institutional structure, to ensure its correct implementation, we also need a "referee". The research attempts to explore: 1. Is there a correlation between the emergence of the judge profession, the judge's behavior choice and the system and its changes? If so, what kind of relationship is it, strong correlation, or weak correlation? 2. Is the judge's behavior choice as an individual actor close to the people or a collective action representing the collective coercive authority of the state more effective for the progress of social democracy? Is there an antagonistic relationship between the two? 3. From the perspective of institutional analysis, how to treat the internal and external criticism faced by Chinese judges in the rising number of closed cases, mass evaluation and the operation of organizational mechanism? 4. Under the general requirement of governing the country according to law, how can Chinese judges devote themselves to promoting the self-implementation of the legal system under the guidance of value consensus?

The research gives consideration to the correctness of theory and the complexity of empirical phenomena. With the help of Scott's institutional analysis model, the study draws four conclusions through analysis. In the process of institutional change, individual judges pass judicial decisions. First, they maintain the structural process of institutional order and coevolve with the institutional environment and maintain the institutional structure; Second, respond to the practical needs of the social system for conflict and dispute resolution, and stop disputes according to the content of the system and legal authorization; Third, through the exercise of judicial power, create a value consensus conducive to maintaining the institutional order of the social system and guide social cognition and social action; Fourth, standardize their own professional behavior and improve the legitimacy cognition and loyalty of other social actors to the ruling authority.

Responding to the instrumental needs of the institutional function of social efficiency and social justice, providing the ruling authorities with the declaration of the legitimacy of long-term ruling legal ideology and social values, providing universal reward and punishment information, and stabilizing social expectations should be the basic functions of the goal setting of collective action of the court organization and the behavior choice of judges. Providing solutions to specific contradictions and disputes is the path rather than the purpose. The sharp increase in the number of lawsuits is not only the symbol of a society ruled by law or the victory of the rule of law, but also the reflection of social governance problems and social centrifugal force in the process of the comparison of external political and economic forces of the court organization. It is also the source of pressure on judges. Similarly, replacing the rule of law with rule-based production (legal system), replacing the mandatory social collective action of judge's behavior choice with people-friendly individual action, and giving up the asymmetry of recognition of power are short-term strategic competitive behaviors that impact the institutional authority. If the judge's behavior choice does not provide the event evaluation mechanism before the judgment, there will be no objectivity of the judge's performance evaluation. Only by clarifying the authorization of jurisdiction, the attribute, attribution, and matching responsibility mechanism of jurisdiction, and making the judges with decision-making power willing to judge and dare to judge, can the system goal of the court be truly realized. Unconditional compliance with the effective ruling of the court is a necessary condition for the construction of a society ruled by law. The professional ability and ethics of judges are only improvable variables to ensure the enforcement of judicial decisions.

The social function of litigation and trial is not as explicit as we see. It is a barometer reflecting the multi-layer operation state of the complex structure of social system and its subsystems. Ignoring the social attribute of litigation and the power nature of trial is bound to enter a false cognitive misunderstanding of rights. Taking litigation seriously is not only the basis and premise of a society ruled by law, but also the awe and respect for human historical system and future destiny.

Date of Award	3 Feb 2023
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Minkang GU (Supervisor) & Tianxiang HE (Supervisor)