According to the legal norms in China, judges are not allowed to deviate from the sentencing model of deductive legal reasoning and syllogism, and thus, they cannot make law. The inherent limitations of this model figure in the reasoning of judges, such as the poor interpretation of the abstract terms of laws and regulations, the difficulties of identifying legally relevant facts and the simplicity of the reasoning process, which lacks legal rationality. While they are subject to the conditions of the legal system, some external and internal factors influence the judges’ reasoning behind their decisions concerning the determination of sentences. The internal factors include the knowledge, judicial experience, special experiences, and attitude of the judge; the external factors refer to the circumstances of the victim, the personality of the offender, the intervention of external power, and the opinion of the public. All of these factors are parts of the dilemma of sentencing justly. Only if the formal and substantive levels of justice are compatible with each other can the justice of sentencing be realized. Finally, this paper would like to put forward some suggestions to deal with the dilemma of sentencing justly, such as improving the quality of sentencing system, standardizing the judges’ sentencing skills, improving the criteria of the judges’ appointment, and constructing an effective communication channel between the judges and society.
Frank, J., Law and the Modern Mind (Anchor Books 1963).
Frank, J., Law and the Modern Mind (Anchor Books 1963).)| false