Judicial Reform Grounded in Dialogue Based on "Sympathetic Understanding"

"What is the root cause of judicial problems?"
"How should we reform to align with fairness and justice and meet public expectations?"

These two questions were posed to us by the organizers of National Attorneys' Day. They are undoubtedly questions that many people seek answers to as well. Analyzing the questions themselves reveals a glimpse into the expectations and imaginations behind them. The first question is one of expectation: we hope to uncover the "root cause" of the problems, then "prescribe the right remedy" to cure the ailment and restore the health of the judiciary. The second question contains certain assumptions. We certainly know that the ideal of the judiciary is to align with fairness and justice, but we also recognize that sometimes the "simple and intuitive justice" expected by the public clearly departs from certain basic principles of the rule of law. Legal professionals whose belief in rule-of-law principles has become internalized will feel the tension therein. Legal professionals dedicated to upholding the Constitution and safeguarding fundamental rights will further understand that the inherent nature of the judiciary possesses a "counter-majoritarian" attribute. To answer the first question, one must actually resolve the second question first. To resolve the second question, one must first harbor an attitude of "sympathetic understanding." Sympathetic understanding means using the greatest goodwill in communication to first interpret the other party's statement as the best and most robust argument, and then attempting to put forward one's own view to debate and communicate with the other party.

As the author frequently receives a wide variety of inquiries from the media, my reflection over the years is that when a major event occurs, the media makes some preliminary estimations, judgments, or holds certain stances, and also wishes to hear different opinions from all sides. Reporting is actually more akin to a process of communication, dialogue, and subsequently reporting and commenting. Of course, perhaps various media outlets have certain considerations that limit the expression space of frontline reporters, but reporters themselves wish to avoid criticisms of insufficient depth and are bound to want to pursue legal rules, principles, and the trade-offs involved. At such moments, legal professionals and non-legal professionals actually want to do the same thing: to "seek the most appropriate law for the specific incident." With the same goal, there should logically not be too large a gap or barrier. I later realized, however, that whether one adopts an attitude of "sympathetic understanding" is the most crucial factor in whether mutual dialogue and communication can succeed. If successful, legal professionals will better understand the media's "original imagination," meaning they will come closer to ordinary people. As for those who understand little about law, if communication succeeds, even if they ultimately do not agree one hundred percent, they can still more or less understand the values chosen by legal provisions or the functions presupposed by the legal system. The gap between the two does not necessarily mean one must move closer to the other. Sometimes the law needs amendment and adjustment, while other times the law ought to be persisted in and implemented, and the original imagination should be transformed or abandoned. But in any case, these require communication and dialogue to be conveyed.

Upon hearing media inquiries in the past, my frequent initial reaction was: "Do they understand the law at all?" At most, I would patiently explain the statutory provisions and the legal principles behind them in a very "professional" tone. The result of insisting on one's own "professional image" was often a disastrous sight upon seeing the published report: it was fundamentally ineffective communication! Professional language naturally raises the threshold of communication. In the past, I frequently blamed reporters in my heart for not understanding the law, for relying on superficial meanings, interpreting words based on personal whims, and lacking precision. After this continued for some time, I suddenly realized that if things went on like this, I was fundamentally a derelict spokesperson: "Isn't my job to communicate with the outside world?" Ineffective communication is a grave dereliction of duty. Thus, I began to change my mindset, earnestly treating every question I deemed "imprecise," attempting to interpret the optimized context of these questions, and conceiving the most robust arguments for them. In fact, I later discovered that I learned a great deal from the "imprecise" questions. The more "imprecise," the more "scholarly depth" there is. This scholarship lies in the "local gap" between rule-of-law theory and practice.

Media reporters are on the front lines of society reporting on issues related to the law that they witness firsthand, hear firsthand, smell firsthand, and touch firsthand. They are ordinary people whose views are not far from those of the general public. Reporters are the majority of the citizenry; what they are unfamiliar with is merely "legal terminology," which prevents them from communicating precisely with the legal community using jargon. However, this is the privilege of non-lawyers, just as a magnanimous and confident doctor would not expect ordinary people to master medical terminology before questioning whether a doctor's medical skills are flawed. The real point is that if we merely nitpick over "precise phrasing," we easily lose focus and miss the opportunity for profound "dialogue." Conversely, if we value "dialogue" itself, we will first use "sympathetic understanding" to interpret the other party's statement as the best and most robust argument, and then attempt to put forward our own view to engage in dialogue. We demonstrate the utmost goodwill in communication, anticipating the best communicative outcome.

Writing up to this point, I feel I am now able to attempt to answer the second question. "Public expectations" need to be faithfully interpreted or spoken for, while "fairness and justice" require people holding different stances and opinions to jointly seek them out. Constructing a platform and arena for goodwill communication is far more important than directly cutting in and debating substantive issues first. Meanwhile, the answer to the first question is also on the verge of emerging. To solve the root cause of judicial problems, one must actually value these "imprecise questions." The more they diverge from our thoughts as legal professionals and the greater the gap, the more they must be valued. For this is the fundamental reason for the distrust in the judiciary. Within the platform and arena of goodwill communication, let us properly value them, earnestly interpret them, and carefully contemplate, discuss, and respond to them. Based on the aforementioned thoughts, the Judicial Reform Foundation, undeterred by our own crudeness and with meager resources, has launched a "National Judicial Reform Movement" starting from "the people raising questions." We look forward to constructing an open, transparent, participative, and pluralistically communicative dialogue platform. Targeting issues of public concern, we combine the assistance, advocacy, and dialogue of legal and non-legal experts to translate them into substantive judicial issues, after all of which we explore possible solutions.

When all is said and done, the judiciary must rely on public trust to sustain itself. The judiciary is a work of "persuasion," and judicial reform is "mutual persuasion"—within the legal circle, and even more so outside of it. To succeed, all of this requires a platform for goodwill communication first, before realization becomes possible.

※ Originally published in Taiwan Bar Journal, Vol. 19, September 2016 issue, Special Issue for the 69th National Attorneys' Day Celebration Convention