从自由主义意识形态到民主对话：评肯特·罗奇的《正当程序与受害人权利》
从自由主义意识形态到民主对话：评肯特·罗奇的《正当程序与受害人权利》
郑戈
【关键词】Due Process, Democractic Diologue, Victim’s Rights
【全文】
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Kent Roach, Due Process and Victim’s Rights: The New Law and Politics of Criminal Justice, Toronto: University of Toronto Press, 1999. 416pp
The U.S. Supreme Court under Earl Warren’s chiefdom was obsessed by liberal ideology, while the same Court led by Chief Justices Burger and Rehnquist has been labeled with conservative ideology. By the word “ideology”, I mean something pre-determined out of the context of judicial process. It is some kind of philosophical and political positions held by individual justices, and subject to no democratic scrutiny. When the justices allow their ideological commitment to shape their legal reasoning, they take the risk of being accused as judicial activists. After all, “the court’s legitimacy comes from the power of its reasoning, not just the number of justices voting.” When a decision has been made, and the opinions have been published, public debate will be focused on the merits or defects in the legal reasoning. If a single decision is too obviously dominated by an ideological tone, it will finally do harm to the legitimacy of the court.
All of our members in the legal community should pay our appreciation to Professor Kent Roach, who provides us with a workable plan to correct the ideological sway of the courts. Although concentrated on criminal justice system, his insights are helpful for us to rethink the structure and process of the whole legal system. In this essay, I try to appreciate his contribution in the context of contemporary North American legal scholarship. Within the limits of time and length, I will concentrate on his methodological framework and one major topic covered by his book.
I. The Democratic Process of Concept-Formation
In a constitutional democracy, law is enacted by the people and for the people. Therefore, judges and other legal professionals don’t have privilege over the meaning of legal concepts and legal texts, which should be open to public debate through a deliberative process. According to Professor Alon Harel,
Concepts and values used in judicial reasoning can be divided into different types. Some concepts are technical legal concepts constructed primarily or exclusively by legal experts, while others are primarily political concepts constructed by political activists and citizens. Concepts such as standing fall clearly into the former category of technical legalistic concepts, while the precise understanding of constitutional rights and their scope is an issue which is largely determined by political discourse conducted outside of courts.
However, this basic implication of democratic institutions is far from shared in the legal community. There exist such jurists as Antonin Scalia, who would firmly refuse any kind of colloquy between judiciary and the general public. In their minds, law is not “a generative force of our public life”, but a closed system of entrenched values with judges as its doorkeeper. In a major child sex abuse case involving confrontation claims , Maryland v. Craig (1990), Scalia refused to take the special vulnerability of young victims into account, and wrote the following lines in his dissent opinion:
The court today has applied “interest-balancing” analysis where the text of the Constitution simply does not permit it. We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees and then to adjust their meaning to comport with our findings.
Fortunately, Canadians have a Section one in their Charter which explicitly encourages the Court to do such an “interest-balancing” analysis and a “notwithstanding” clause (Section 33) which enables the legislature to force the Court “thinking twice”.
Kent fully understands the institutional implications of these clauses, and does his best to show the good they can bring to Canadians. While most of the potential capacity of these clauses has not been brought into play, he gives us an optimistic prospect. Through a comprehensive study on the criminal cases decided by the Canadian Supreme Court since 1982, Kent figured out a single most important element which will determine the future development of criminal justice in Canada: victims’ rights. In addition to this, he provides us with two new models addressing victims’ rights as supplements to Herbert Packer’s criminal control and due process models.
