Communicative Functions of Court in a Democratic Plural Society
Date Issued
2004
Date
2004
Author(s)
Liang, Chih-Ming
DOI
zh-TW
Abstract
Today, a plural society has been posing great challenges to majoritarian democracy, thus threatening the role of court. The theory of deliberative democracy, focused on dialogue and communication, has been developed as a major response to such challenge. It tries to institutionalize communicative mechanisms so that political participation and public decision-making could derive from sufficient dialogue. Can this theory apply to the court? What kind of judicial role will be assigned and whether court may play an important role in deliberative democracy are the main issues explored by this thesis.
To explore proper roles of the court in deliberative democracies, this thesis has examined theories of democracy and reflected upon the question of whether deliberative democracy could mitigate conflicts of values, which may not be properly resolved by majoritarian democracy. In addition, based on the theory of deliberative democracy, this thesis tries to find out possible relationships between court and communication by conducting empirical research on the performance of court as an institution and its adjudication.
This thesis summarized five models of relationship between court and communications. First is the avoiding model, in which court dismiss cases and allow controversies to be resolved by institutions more capable of communication. Second is the empowering model, where court is to ensure the ideal communicative situation by guaranteeing communicative rights. The third is the guiding model, in which court is to ensure that public decision-making comes from a fully communicative procedure. The next model is a mediating one, where court is to mediate controversies and channel them into institutions more capable of communication. The final mode is communicating one, where communications with society and political branches are done via court’s verdict.
Based on the theory of deliberative democracy, court may play ideally three kinds of communicative roles: first as an onlooker, who dismisses the case; second as a guardian of communicative situation, and finally as a communicative participant. All three roles have institutional presuppositions: court as onlooker presupposes the capacity of decision-maker to resolve problems through dialogue; court as guardian may intervene in and reinforce unhealthy communicative situations, and finally, court as a participant requires modifying the manners of adjudication: adjudicating without concrete controversies, narrowing the scope of a ruling and deepening reasoning.
This thesis concludes that in Taiwan court must exercise more prudence with procedural dismissal, and that the models of empowering, guiding and mediating in which court play different communicative functions ought to be applied flexibly so as to ensure the ideal communicative situation. At last, court should narrow the scope of its rulings in order to trigger more political response, provide more persuasive reasoning, and transform adjudication into the platform of dialogue by mitigating changing norms and acting as a representative of those present or absent in different time and space.
Subjects
公民共和主義
哈伯瑪斯
法院
審議式民主
制度
溝通
Habermas
communication
institution
plural society
court
deliberative democracy
civil republicanism
Type
thesis
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