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The Nature of the Judicial Process

Updated October 16, 2020

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The Nature of the Judicial Process essay

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The book “The Nature of the Judicial Process” originated from Cardozo\’s lecture at Yale Law School, a summary of Cardozo’s experience as a judge for many years. A systematic theoretical explanation of the pragmatic judicial philosophy, which was later published in 1921, caused a sensation in the American jurisprudence and legal practice. So far, the book has become one of the most widely cited and studied works in the American legal and legal practice circles, and has become one of the unique American legal philosophy and judicial philosophy.

Cardoso lived in the transition period from the agricultural society to the industrialization and urbanization in the United States. Some judicial precedents formed in the past agricultural society have not been able to meet the needs of social life in the common law country of the United States. The common law faces reform. However, in common law countries, the legislature is accustomed to non-intervention in areas that are subject to common law. These areas are mainly through the judicial process by the judges to “discover” the law to complete the evolution of the law. However, the principle of following precedent is the common law. The important spirit, modern political theory also believes that judges are the executors of the law rather than the makers of the law. It requires judges to strictly follow the precedent and prohibit judges from arbitrarily “making law.” In the face of this dilemma, Cardoso fully exerted his judicial wisdom and theoretical talents, and used the pragmatic judicial philosophy theory prevailing in the United States at that time to make a wise interpretation of the nature of the judicial process.

In Cardozo’s view, justice is actually a conservative process, not only because it is only a referee’s fact, but also because it is based on precedents in the judgment of facts. Only in this way can the litigant be fair and authoritative because of the vague prediction and comparison of certain results. Based on this, Cardoso said: “Following the precedent is a basic principle, not an exception.” But justice is also a process of responding to social needs, so when a principle or a rule is based on precedent and logical reasoning, the results are obviously not in line with social justice and social welfare, the judge can be free from following the constraints of the principle of precedent, and bravely give up precedents and logical reasoning, and replace it with “making law.” However, when judging whether a precedent has not adapted to the needs of society, it will inevitably have the influence of judges’ personal factors (such as personal preferences, accepted legal training, etc.), judges should try to get rid of the influence of their own factors, and use logical methods. , historical methods, habitual methods, sociological methods, and from the perspective of the legislator, from the experience, research and reflection to get the knowledge he needs. Only the judgments made under this premise can provide legitimacy for “making law.”

However, what is the power that allows judges to judge whether a precedent is outdated? In Cardoso’s view, the entire legal system is a transcendental thing, and it is impossible to exhaust all human rationality. Therefore, the precedent does not have absolute authority; and this understanding of the law makes the law an eternal The procedural things in rheology. It is this kind of understanding that provides a philosophical basis for judges to fail to follow or overturn precedents under certain circumstances. On this basis, it is the inherent requirement of the judges of the society to explain the responsibility of the social conscience to prompt the judge to initiate the process of judging whether a precedent is outdated. The ultimate standard of social conscience explained is social welfare, and the requirements of social welfare can be “convenience or caution” or “religious requirements, ethical requirements or social justice requirements”, so only those that are conducive to promoting social welfare. Value orientation can be interpreted as law. This is because in Cardozo’s view, the ultimate cause of the law is social welfare. Rules that fail to achieve their goals cannot be a permanent proof of their existence.

The reason why the law can be changed by the judge is also related to its non-uniqueness, that is, “the legal principle is not one, but a bundle.” At the same time, the historical limit of a principle itself will limit itself, and thus the legal principle itself has a blank. The judge is to carry out “legislation” within this limit. And what is the limit? This limit is the inherent tension between the law’s desire for completeness and the need for stability. This tension reflects the space that exists between justice and truth. Therefore, as the conscience of society, the judge\’s task is to work to narrow this gap.

Judges are more than just “discovering” the law, but “creating” the law. But this kind of “creation” still needs to be done in a gradual way even under the premise of “sexuality”, not only because the judge is not explicitly authorized to create the law, but also because the law created by the judge is to some extent It is contrary to the value of precedents and legally derived laws. The law created by the judge is a “remedial measure” that arises from the facts of the case and is an after-the-fact legislation; this law is retroactive, making it undisclosed and unpredictable for specific cases. This is the fundamental difference between it and the precedent and logical reasoning. Therefore, this is the enemy of the value of the law itself, and the harm to the value of the law will further increase the gain of social welfare. Therefore, as a judicial process of value balance, there is an inevitable risk. These risks are the price that society should pursue, and it must be borne. But denying or ignoring this risk, the progress of the law and the resulting gains in social welfare cannot be discussed. Therefore, although we allow judges to create laws, such creation must be a gradual process that is limited to a certain limit.

The above discussion is a discussion of the necessity, the purpose of the judge to “create” the law in the judicial process, and the restrictions on the physical and formal rules required to “create” the law. Through these discussions, we can find that, as Cardoso said, “a judge is a living legal announcer”. He not only “discovers” the law but also “creates” the law. “The highest state of the judicial process is not the discovery of the law. It is creating law.\” The nature of the judicial process is a kind of guidance under the guidance of social welfare, through the response to and correction of social needs and changes, in the process of promoting the simultaneous development of law and society to balance the various values ​​of society, Gain for social welfare. It is this nature of the judicial process that gives the judge the ultimate and most fundamental legitimacy of the “interpretation of the social conscience”, so that the law “created” by the judge has a socially acceptable nature.

As Cardoso said: “The law is not only logical operation, nor is it not related to value, but a very secular, full of interests balance and choice.” The reason why “balance of interests and choices” is needed, It is precisely the demand of the real society. Different social environments must have different needs. “It is impossible to truly understand the law without considering the actual situation of human social life.” In the face of such a famous book that shocked the world of law, it is deeply impressive, and perhaps the most needed is a cautious and calm thinking.

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The Nature of the Judicial Process. (2020, Sep 18). Retrieved from