Judicial Deference and Restraint
|Keywords||courts legislatures executives judicial review judicial deference judicial restraint|
Judicial deference and restraint refers to the deference and self-restraint of the courts to the legislatures and administrations within the scope of discretion, based on a variety of reasons in the process of litigation. In those countries with well-developed judicial review systems, particularly the United States, judicial deference and restraint is a judicial philosophy that has been observed generally by the judges. Therefore, the author of this paper studied systematically the preconditions, the legal theory foundations, the concrete operations, and the limits of judicial deference and restraint with American judicial review system being the main object researched. And in the light of these research fruits, the author probed initially such questions as the possibility, the necessity and the practical operations of judicial deference and restraint in our country. And the author also discussed initially how the American experience can be applied in our courts.Firstly, some preconditions, for instance, the country being a constitutional state, the judicial review power given to the courts, must be satisfied before judicial deference and restraint becomes a judicial philosophy observed generally by judges. Apart from the preconditions mentioned, some special preconditions are also a must, including—the wide existence of judicial discretion, the vanishing of the judicial feat logos, and the prosperity of new constitutional ideology.Secondly, the birth of judicial deference and restraint is based on certain causes, with five aspects included—first, the separation of powers principle; second, the counter-majoritarian difficulty, the advantages of democracy and the disadvantages of judiciary itself; third, the specialization, technical content and due process of modern administration and the necessity of wide administrative discretion; fourth, the unchanging reality of the courts’ lack of financial autonomy and military power, and the ruthless struggles among government powers; fifth, the deficiency of judicial resources.Thirdly, as a judicial philosophy, judicial deference and restraint is inevitably externalized by a series of judicial principles, criteria or practices. In their judicial review practices, judges of American federal courts, based on judicial deference and restraint philosophy, have developed a series of principles, criteria of judicial deference and restraint. On the timing of judicial review, they have established such principles as ripeness, exhaustion, finality, and primary jurisdiction. On the scope of judicial jurisdiction, they have established "political question" theory; they normally try to avoid the review of certain cases under such pretexts as, "courts have no review capacity", "administration has absolute discretion", "problems are better solved through political or democratic channel", apart from their abandoning their jurisdiction over certain cases with "political question" being the excuse. When reviewing legal issues, the judges follow the principles of "the presumption of constitutionality" and "the explanation of constitutionality" and they respect highly the legislatures’ interpretations of the constitution; when reviewing the administrations’ legal interpretations and administrative regulations, they show their deference at different levels in accordance with different situations. When reviewing facts, they normally show more respect to the administrations’ conclusions at different levels than they do to the administrations’ legal conclusions, except for some significant cases and certain facts which may affect greatly citizens’ rights and benefits. As to the content of verdicts, they normally avoid judging constitutional issues, and many of whom hold to judicial minimalism. Judicial deference and restraint is also embodied through the forms of verdict. Many of the principles, criteria and practices of judicial deference and restraint of American federal court also exist in some other countries and districts, or are followed or imitated by them.Fourthly, judicial deference and restraint is not limitless, which is subject to the scope of judicial discretion and such factors as the requirement of judicial ultimate adjudication, the courts’ pursuit of their own status, the acceptance degree of society, the dilatability of the power itself, the judicial customs, and the mutual supervision between legal professions. Nevertheless, judicial deference and restraint given in a particular case may exceed an appropriate amount because of the incertitude or indirection of these constraints. Therefore, it must be emphasized explicitly that in those cases concerning citizens’ passive basic rights, the ones which may have impact on the political process, the base of the formation of democratic system, and the ones concerning the rights of the minority communities, the courts must be very cautious about the application of the principle, criteria or practice so that the basic rights of citizens can be protected from being harmed.Lastly, So far, our country is in the preliminary stage of legal construction without independent judicature, and the judicial review system, one of the critical factors of constitutionalism has not been established yet. But the conclusion is not necessarily positive that judicial deference and restraint does not exist in our country and our courts need no deference and restraint to the legislatures or administrations. In effect, our judges are constantly confronted with the problem of how to exercise judicial discretion to deal with the relationship between the legislatures and the administrations and itself in administrative litigation, civil litigation, or criminal litigation, particularly in administrative litigation. To our courts, in the process of striving for independence and authority, it’s necessary that the strategy of judicial deference and restraint be applied. Practically, the practices of some of our courts and judges have reflected the spirit of judicial deference and restraint when the scope of judicial jurisdiction, the interpretation of legal regulations, the alternative between the application of the conflicting legal regulations, and the scope and intensity of judicial review are taken into account However, these practices are not supported theoretically, and judicial deference and restraint, as a judicial philosophy, has not been observed generally by our judges yet. In a short period of time, it may not develop into a judicial philosophy proposed explicitly by the judges in our country and followed generally by them due to such factors as the reality of corruption of government powers, the public demand for power control, and the insufficient checks-and-balances system. Nevertheless, considering the political system of combination of legislative and executive powers, the humble status of our courts, and the dominating status of our administrations, we need to borrow the theory of judicial deference and restraint and learn the practical experience from the United States to provide theoretical foundations for the similar practices in our country, to guide theoretically the perfection of our legal system, and to promote the status of justice.The author, consequently, holds that such questions as whether judicial deference and restraint theory should be applied, how it should be applied are not the ones that can be avoided in the rational location of our courts and the furthered judicial reforms in the future.