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This scenario is untuneful with our new understandings on democracy. According to John Rawls, a political regime could claim the title of “democracy” if and only it bases all of its decision-making with public significance on “public reason”:
The idea of public reason, as I understand it, belongs to a conception of a well-ordered constitutional democratic society. The form and content of this reason—the way it is understood by citizens and how it interprets their political relationship—are part of the idea of democracy itself. This is because a basic feature of democracy is the fact of reasonable pluralism—the fact that a plurality of conflicting reasonable comprehensive doctrines, religious, philosophical, and moral, is the normal result of its culture of free institutions.
Criminal process is undoubtedly a decision-making process of public significance. If it is still modeled as a bipolar affair between the state and the accused, it can no longer satisfy our democratic expectation. Kent has fully recognized this trend of development. Although his understanding on democracy is not derived from any philosophical reflections, it has accurately captured the very essence of democratic process. He tells us that the development of criminal process is no longer under the control of legal elites; the concepts and interpretations in criminal law has come under the influence of various forces: the feminists, aboriginal people, civil liberties activists and other groups or individuals who constitute our citizenry. “Victims and other third parties gained a procedural and substantive stake in criminal trials by claiming that their Charter rights were violated. Rights discourse was flexible enough so that rights could be invoked both as a limit on state power and as a justification for the criminal sanction. Many crimes Packer believed to be victimless and based on consensual transactions were successfully defended as necessary to protect the rights of disadvantaged groups and to honour international commitments.” The Charter has provided Canadians with a new framework for the formation of rights discourse, the citizens has actively participated in the social construction of legal concepts, in this context, what can we scholars do?
II. New Models to Accommodate New Possibilities
While criticizing heavily on the inadequacies of Packer’s models, Kent admires Packer’s ambition to make his models as “a framework for considering the dynamism that appears to characterize present-day trends in the evolution of the criminal process.” As Kent told us, his new models are “based on different conceptions of victims’ rights. Like Packer’s crime control and due process models, they aspire to offer positive descriptions of the operation of the criminal justice system, normative statements about values that should guide criminal justice, and descriptions of the discourses which surround criminal justice. Models based on victims’ rights can thus describe phenomena such as the new political case which pits the accused against crime victims or minority and other groups associated with crime victims, or restorative justice practices which bring crime victims and their supporters together with offenders and their supporters.”
However, Kent’s ambition is not limited to provide new models as supplements to Packer’s models, which is based the Canadian practices and which can help us to predict the future development of Canadian criminal process. He also hopes that his models would not be restricted by any assumptions about “the limited, liberal nature of governance or the central place of an adversarial system staffed by public sector professionals.” This kind of modeling, if successful, will be more general and can be used by lawyers in different legal traditions to understand and/or improve the performance of their own systems. Such an effort should be based on a deep understanding on the interaction between law and politics. Thus, it is unsurprisingly that Kent subtitled his book as The New Law and Politics of Criminal Justice.
The interaction between law and politics has long been a hot topic incurring a lot of insights among legal scholars and political scientists. In Legal Reasoning and Political Conflict , Cass R. Sunstein introduced this topic by employing a familiar image of justice: the blindfolded goddess holding a scale. As he has pointed out, the whole problematics of judicial decision-making stems from the opposite of this image: judges must decide diversified cases by applying laws with diversified interpretive possibilities. Furthermore, they work under time limits. This means that judicial decision-making cannot be a permanently intellectual inquiry, although the inner complexity involved in many cases deserves and demands such an inquiry.
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