From the case of American "justice" of the judicial application of

Paper Keywords: fairness, Justice, basic principles of due process, political Justice
Abstract: The U.S. Justice from the common law tradition and the practice of case law, the judicial officials often differences through case selection and technique to reconstruct the development of precedent and interpretation of law, through the understanding of fuzzy words to express different values, by devious means and technical discourse to achieve the principles of fairness and Justice. However, the application of the principles of fairness and Justice from the ruling literally can not acquisition, in some cases is the intention of the legislators need to repeated scrutiny and judicial context to clearly discern The. can be analyzed by a typical case of American "justice" principle of the judicial application of real American justice.

American common law tradition and the case law system in its development of the specific rules of law behind, and "latent" a large number of general principles. These principles are sometimes clearly identified as to legal principles in the form of vivid and colorful, and sometimes be inferred based on reasonable criteria and judges to explain and clear legal rules, and sometimes no obvious signs of the text, only in the concept of the judiciary in the process of judicial application and interpretation of choice of law play a role stealth Mohua. These principles namely, the alleged author of "fairness and justice." They not only can be used to explain the specific legal rules, and when the lack of specific legal rules, unclear or do not meet the most important values, they can be directly used as general guidelines and decision become the basis for the referee. But the typical case in the United States, there are still a number of apparently abandoned the "fairness and justice" principle, strictly in accordance with statutory verdict form. In this paper, case study approach to explore the American justice strictly "ruling by law" behind "justice" principle applies to hidden in order to inspire our country strictly judicial, "decisions according to law," the source behind the legal significance of the investigation and judicial use.

First, the case Description: Josiah child abuse case
Josiah Disha Li was severely beaten by her father, and a permanent damage of the boy. Wen Nei Beige District Court for the first time that Josiah Di Shali abuse was in January 1982, when the temperature Nei Beige County Social Work Department (referred to as DDS) and its parent interview, but his father denied the allegation. DDS did not get to the bottom, in January 1983, Josiah and abuse. Three days later, DDS Josiah issues discussed and signed with his father commitment to the agreement. Since the proposal DDS, juvenile court dismissed the case .1 months later, the emergency room staff suspected Josiah was again beaten. in the next 6 months, DDS to his home to visit once a month during this period. Josiah is still subject to abuse, in November 1983. Josiah and because victims of abuse who were taken to hospital. After, DDS staff also visited the home of Josiah twice, but were told not to meet Josiah sick.

DDS has taken no action In 1984 March, 4-year-old Josiah was beaten into a coma a threat, there may rest of his life in hospital. His father Randy Di Shali found guilty by the court the crime of child abuse. So Josiah and his mother filed suit charges DDS and his staff did not follow due process against the law to take measures to protect abused by the father of Josiah, the district court found the defendant guilty, the plaintiff refused to accept, until the appeal to the Supreme Court. Supreme Court ultimately to maintain the sentence.

Second, the case of debate
Supreme Court case in the controversy caused by a larger, significant differences between parties to the dispute. Leikunsite other judges held that the due process clause does not literally require the state to exercise a positive obligation to protect. c-like rights are granted to government assistance, even if such assistance to save life, liberty, property is a must. Only when the state restricts the behavior of individual freedom (such as imprisonment, resettlement, or other similar acts), especially when the free deprivation only when the terms of the fairness of procedures to start the protection of the individual. And in this case, this situation does not exist. Therefore, they believe that the behavior of DDS staff is lawful and does not violate due process clause.

And Breland, such as Justice Marshall disagrees. They believe that under the state law, whether to take action to protect children from abuse issues, DDS has the final decision. DDS case of ignoring child abuse, other agencies can not make up. And the state's DDS has been abused in that Josiah still handed him over to his father, I should say Josiah DDS has been involved in life and that he is in fact a dangerous situation. It is this active involvement, making the state the responsibility of Josiah's time to give relief in danger.


Third, the case analysis
This is a change occurred in 1989 on the "relief actions were not" a landmark case. In this case, the Supreme Court and Court of Appeal in agreement. Final determination of DDS and the staff does not violate due process requirements of the law. Our intuitive feeling is that the father suffered a violent destruction of the poor child, unable to seek the protection of the Constitution, no reason to be just abandoned. However, whether the case really as we have seen, the judge rejected the ruling of "justice" faith, and mechanical application of the provisions of ruling it?
The judges to the U.S. judicial decisions involving two different theories, namely, that judicial activism and judicial conservatism said. But as Chris said Vladimir delay, "the difference between dynamic and restraint more than just a different nature in varying degrees problem. "port call in a different camp then the judge will be based on different ways of thinking and position so that the same case showed two different results, but conservatives are not articles of mechanical maintainer, as opposed to conservative or restraint dynamic speaking. Even strict accordance with the ruling conservatives, can not give up "justice" belief, they judge the case is through a variety of different principles and practical considerations made after weighing the situation, large In most cases, they are also expected to fill the law through the judicial gap, to achieve fairness and justice. Therefore, in this case, you can not make a decision because the judges are conservatives, they take a strict application of the law the way to the view that the verdict and not based on "fairness and justice" principle made. However, I believe that is not true.

First, the United States, justice is not a "Kantian moral theory", but Rawls's "political justice" theory, 'is the "overlapping consensus" under the Comprehensive judge. In this case, the state government is not without take any actions to prevent the occurrence of abuse and continue, but in accordance with the requirements of the program provided basic relief. government acts involve not only the rights of victims of abuse, but also involves the rights of his father, if the requirements of such state children are used to maximize the protection means to be the child of a father's rights have been violated, and secondly, may also result in some restrictions on freedom, so that the public interest to suffer. Josiah, although the experiences of people sympathetic But the harm was not in his state but his father, DDS staff failed to take fully active, have some fault, but it is also based on consideration of both the equal protection rights. reposted elsewhere in the Research Papers Download http://www. hi138.com Second, the focus of this case is: to what extent the protection of the rights considered as "legitimate"? that citizens are entitled to enjoy the solitude of the negative liberty to accept government help, or positive freedom, which is the difference between the two governments is "To human damage "and or" Wei Yu reasonable assistance "the key differences between. on" assistance to cause damage or failure "of the violations in the United States there are many judicial precedents, according to the practice of this precedent, in this case , found the defendant's conduct did not constitute due process of law is also based on the results of a precedent to follow. Therefore, the court's judges did not fully realize the right to maintain a single Josiah, but by the rights and powers of the rights and powers as well as the severity of comparison and consideration, measured by the interests of political selection, moral judgments, such as multiple levels, so that fairness and justice to every individual to achieve the overall sense of social justice. This form of justice, individual justice as a distinctive sexy, moral appeal, and therefore can not easily be detected. but we still felt, in accordance with the law behind the referee, fair play and justice still implicitly, the verdict is still a product under the guidance of the principles of justice.

Perhaps overshadowed again Puzzle: Is the right to the weak political justice can only bend so can not be protected? Realization of justice should be to the expense of individual rights? If so, as always, the fair value of assets after just how much there is a positive effect? In fact, for the decision is concerned, although its object is to safeguard the interests of litigants directly, but the law itself is a specialized, scientific explanation Community, the decision on the future development of the law has a potential significance. Therefore, the overall the maintenance of justice in a single individual rights than the extreme to maintain a greater share of the rationality and legitimacy. We may assume that, should the decision to meet the demands of the plaintiff, the situation will be substantial improve? future will be in coordination with other states parts of society: of abused children to the interests of other timely intervention started it? tort law itself is not as preventive and universal, but the remedial and special in nature and therefore, few data to confirm this. chewing who, according to the laws of the United States, its political system has long been a state and federal government in principle and in practice, the burden of a large number of both positive system of government responsibility. In fact, their rights as a national commitment to the obligations of the entity. Thus, although the plaintiff lost the case, but could still be the father of Yueya Xi criminal charges, disciplinary action for social workers to implement the motion and asked the Government to pay compensation and other means to protect the individual rights of its injured. So , equity and justice seem elusive, but it is not illusory, a country, a social justice is the need to integrate into the whole social system, to understand the background facts to fathom the.


IV Summary
Through analysis we can find justice in the U.S. "justice" is an open system, it is the law itself contains the value of many aspects, such as, human rights, freedom, interest, efficiency, equality, order, and so on. 'Is there is a perception, fair justice is constant, there is the pursuit of its ultimate value, but it is not only the concept of existence, but also as a social system, the standard of justice exists, it must be specific. then it applies , it must be considered to contain a variety of value judgments to consider the social effects. In this case, application of the principle of justice is based on the Due Process Clause in the "proper" understanding of the term caused, and literal comprehension correct or not, that is, "whether to allow exceptions to the literal meaning itself depends on one by one to understand the moral and political considerations." Thus, in the United States, the final decision to form the color of a political ethics is the rules, morals , policy, social reality, and other factors considered in the product.

Finally, and perhaps we will be questioned: ideology in the United States, a diverse and multicultural knowledge and open country, justice can form a general consensus? If there is no common conception of justice, the court applied the principles of fairness and justice How is the time to grasp and to apply it?
American society of fairness and justice, as Rawls has said is an "overlap of their knowledge."
In the United States, through the selection of different areas, different status of jurors. To produce in the community, with people's prejudices, beliefs and limitations of certain factors outside the rules of justice enter into the legal process, resulting in the formation of specific cases of "overlapping consensus" to protect basic justice. Although "justice has a Proteus-like face, fickle, ready to be presented in different shapes and have very different face." 06 DA is the ultimate value of the pursuit of justice in people's minds, or the same. again who, "generally accepted formulation of legal principles, generally accepted and used to prepare the legal concept of deciding cases, and opinions that the court's goal of more present in the gut, rather than the traditional conflict and confusion in the explicit expression prevailing attitude - these can be reduced considerably change. Additionally, the design of the U.S. jury system, but also give people the idea of the concept of justice in the majority can be captured. Thus, even in a rapidly changing America, a period of time social justice is roughly the same concept, they are by convention, life, there is the form of context, and judges are willing to make the decision to meet these needs, so that justice is rooted in the people with the foundation. It can be said, the principles of fairness and justice in the United States Justice of the particular stage has its basic meaning is relatively stable, they can be real justice is to grasp and apply. Links http://www.hi138.com Research Papers Download