The Legal Meaning For The Sense Of Justice And Its Emergence System Based On The Reciprocity Interpretation

People always use the word of "the sense of justice" to express their attitude and protest when they are enduring suffering and injustice.The sense of justice works with the legal life and mind of ordinary man.Moreover,the sense of justice is the pro conception for the judicial decision of judges about justice.Which determine the justice target of judicial process accomplish or not finally and how to accomplish the target.The judge should make the court decision incorporate the content of appropriate reciprocity.The law should guide and calm the reasonable sense of justice of citizens;otherwise social order will be destroyed.It will bring significant theoretical meanings and practical influences in researching the fields of sense of justice.Nowadays,Chinese scholars pay few attentions towards the subject of the sense of justice.Few scholars devote to a clear analysis to the conception of the sense of justice and give enough interpretation to tell us how the sense of justice appears.The conception and emergence of sense of justice is in accord with the ways of its interpretation.This paper suggests the interpretation of justice based on reciprocity.From this point of view,the sense of justice is the emotion of resentment of somebody,when he is the victim of behavior violated the norm of reciprocity.Resentment includes personal's esteem to the law and the recognition to his reasonable plea,which is the legal meaning of the sense of justice.There need a process of analogizing between personal experience and expectation of rational person.In the first chapter,this paper analysis the conception of sense of justice,it suggests that the justice in the word "sense of justice" is some kind of decision about values of man's behavior.The sense of justice pays more attention to the intention of behaviors.The sense in the word "sense of justice" is not in the aspect of the epistemology,but the issue of Objective judgment.The sense has several different ways of expression,which can produce the legal effect content and is limited by the culture and norms in community.The sense of justice is made up of the cognition element and the emotion element.Subject should recognize his interests,legal rules,fact and the causal relationship.The emotion element of sense of justice refers to the resentment.Resentment comes from person's desire to revenge,which is the psychology basis for legal evolution.The recognition element and the emotion element work at the same time,there is no superiority and primacy between them.The correct recognition of the relationship between them can prevent wrong opinions,which regard the sense of justice as something of unconscious in intuition as well as simply the conclusion of justice by reason.The sense of justice is different from the sense of morality.The cognition object of sense of justice is interest,legal rules and fact,in contrast the cognition object of sense of morality is moral rules and fact.The emotion element of former is resentment,otherwise the emotion element of the latter is indignation and guilty.In the second chapter,this paper intends to confine the exact meaning of the reciprocity and find an effective tool to interpret the sense of justice.Then it will discuss how reciprocity explains the sense of justice,and finger out the advantages in contrast to other ways of interpretation.Reciprocity refers to the exchange relationship about the good and harm between the citizens.Man should reciprocate good for good,evil for evil,which essence of the word "reciprocity" is reciprocating the precious deeds of other people.The interpretation of "the sense of justice" means subject's sense of justice will be invoked when the other people violate the norm of reciprocity.It is a reasonable using reciprocity to explain the sense of justice for reciprocity is a more original concept to justice.In addition,reciprocity can fit to the intention of the behavior,and have inner connect with the law.We should put two limitations on the reciprocity when we decide to use it explaining the sense of justice.One is the subject has to be egoism,and the other is the relationship should create some kind of legal obligation.The interpretation for the sense of justice focus the emerging situation of sense of justice,which depict the demand of reciprocity.How can we evaluate one behavior violate the obligation of reciprocity.There are two standards,one is the positive law,and the other is natural law.The standard always is the positive law,but it needs to be replaced by the natural law when it is evil.The two standards can make up with each other.In the third chapter,this paper discuss several important theories of the sense of justice for making analogy to address the advantages of the reciprocity theories,which can be seen as one defend for the thesis of this paper.In the comparing process,it can present more deeply and clearly explanation about the reciprocity attitude of the sense of justice.Rawls thinks that the sense of justice is some kind of human capacity to recognize and carry out the principle of justice.His interpretation of the sense of justice is decided by the justice principles.From the point of the construction of the sense of justice,he suggests the cognition object of sense of justice is the principles of justice.It is the justice principles that make difference between the emotion of sense of justice and the other emotions.In a word,the conception of the sense of justice in Rawls belongs to the field of morality,which is not fit to construct a legal theory.It can't dissolve the problem of tautology.Dubber thinks that the sense of justice this capacity for empathy,which comes from identifying other people as human the same as one's own deserving equal respect and justice treating.He argues that the sense of justice is reflective rather than reflexive,and it is individual rather than some community attribute.Moreover,it is universal rather than exclusive.Dubber's explanation to the sense of justice is not enough in contrast to his ambitions that promote the big progress in legal theories and practice.It is because of the problem in is theories.One of them is that his conception of sense of justice can't be differentiated from the sense of morality.The contradiction between the form and content in his theory is another problem.Jiwei Ci considers the sense of justice is the conscious to overcome the egoism.He thinks that the sense of justice come from the lower reciprocity which will be overcome by the time of the evolution of morality.The sense of justice has two faces.One is limiting the express of oneself;the other is making the self expression right.The sense of justice is some kind of morality having the conscience of self awareness.His research of the sense of justice is in a primitive level.It is hard to find one stable concept of the sense of justice in his work.The sense of justice in his theory is most a concept of morality.Riezler distinguish three kinds of sense of justice.The first is some kind of intuition about how the positive law applied to the given cases.Second,there is the sense of justice,as a sense of what is right and just,regardless of the state of positive law.finally,the sense of justice refer to an interest in seeing that the applicable positive law,just or not,be followed and the sense of satisfaction derived from recognizing,or actually engaging in,acts the accord with the governing law.The peculiarity of his interpretation is the admiration to the legal order,which has the supreme dignity.His concept of the sense of justice inherits in the law itself,which is some kind of sense of law exactly.There are some defects in his theory.The first is that his three division of the sense of justice is not scientific.His concept of the sense of justice presumes a legal system worked,although he can't detail the source of it.This is not in accord with the important and prior function of this conception.In is hard to distinguish between the sense of justice and the sense of law in Riezler's theory.In the fourth chapter,this paper discusses the role of sense of justice toward person,judge and bystanders in specific cases.Whether the sense of justice can take important role in the judicial decision making process.Once the subject's sense of justice invoked,he is likely to take the legal measures to calm down.He will use the measures including negotiation,arbitration,litigation,petition and revenge to satisfy the sense of justice invoked.Justice can be defined be the sense of justice,which has the following features,individual,emphasizing action and easy to make consensus.Theses feature the fit to the character of the demand of justice in the law.The senses of justice can accumulate the strength to accomplish the justice and right in the law as some kind of reaction in certain situation.The expression of the sense of justice is the motive for the achievement of judicial justice.The sense of justice functioned as the tool or ways of thinking guiding the judge making decisions in a way that both sides in the lawsuit can accept.It is not a process that the judge's sense of justice in the central location and the emotion of the judge playing a important role.In the theory of the sense of justice based on the reciprocity,the judge takes the point of wise bystanders.He looks for the truth and confirms the facts supporting the emergence of the sense of justice.The judge has to find the evidences-for the reasonable sense of justice based on the result of effective debating in the court by both side in the lawsuit.The final decision is the confirmation of the reciprocity content which is reason and proper.The judge should pay attention to the ways of augmentation-so as not to invoke interested parties' sense of justice.The sense of justice based on nature and humanity,which can be a form of balance or equilibrium that both individuals and legal sysems seek to maintain in a changing and complex world.It is a creative theory,and can construct a legal theory accordingly,which can provide the new foundations of the principles such as freedom and human rights in a changing and nihility postmodern world.It is a big project of achieve this goal,which need great effort to devote in.this paper is a primitive effort in this direction.