Interests-balancing In The Judicial Process

The reason why I choose Cardozo's philosophy of law as the subject of my doctorial dissertation can be analyzed in the following two aspects. Firstly, from the theoretical consideration, this study is a paticular one of my consideration of the problem which is about the relationship between law and society. As far as I am concerned, Cardozo's attention on the society is mainly embodied through the process of interests-balancing in the judicial process. So, the thought of interests-balancing is the key element of Cardozo's philosophy of law, from which my research begins. Secondly, from the practical consideration, as the rapid development of China society, there are more and more new interests, so, judges need balance these different interests in their judicial process. The problem which needs our serious thinking is that how to balance these interests without getting into judges'tyranny. As to the dissertation, the research of Cardozo's thought of interests-balancing may support a reference. From the two reasons above, when I study Cardozo's philosophy of law, I focus on Cardozo's thought of interests-balancing.To be more specific, the whole dissertation consists of seven chapters, namely,"introduction","the target of Cardozo's thought of interests-balancing","the methods of interests-balancing","the standards of interests-balancing","the philosophical background of Cardozo's thought of interests-balancing","the social background of Cardozo's thought of interests-balancing"and the temporary conclusion.Chapter 1 is the introduction of the dissertation, which includes the selection and significance of the subject, the previous studies and the approach of the discussion and the structure of this dissertation. The dissertation points out that, Cardozo's thought of interests-balancing, even Cardozo's whole philosophy of law, can support a good reference when we consider both the general problem of the relationship between law and society, and the problem of judges'practical interests-balancing in the judicial process.Chapter 2 discusses the target of Cardozo's thought of interests-balancing. In other words, the first problem I must inquire into is that why Cardozo hold the claim that judges need to balance interests in the judicial process. To my way of thinking, it originates from Cardozo's criticism on the judging way of legal formalism. In this part, firstly I summarize the general description of legal formalism and the criticism from other writers. Secondly I pay more attention to Cardozo's criticism on the judging way of legal formalism. In my point of view, Cardozo's criticism focuses on two aspects, on the one hand, legal formalism emphasizes unduly the method of logic but ignores other possible methods, on the other hand, legal formalism stresses too much on concepts themselves but disregards the relationship between concepts and real life. Thirdly I analyze Hynes and Wood which in my opinion embody Cardozo's criticism. The dissertation points out that, Cardozo's criticism on the judging way of legal formalism is the starting point of his thought of interests-balancing.Chapter 3 discusses the methods which according to Cardozo are employed by judges in the judicial process. Due to the convenience, the dissertation applies the way of the distinguishment between the conscious and the subconscious methods. As to the former, Cardozo means the methods which can be recognized and named at sight, including the method of philosophy/logic, history/evolution, tratition and sociology. Among these four methods, Cardozo especially emphasizes the one of sociology. He points out that, it is playing a more important role. As to the latter, although Cardozo names them methods because of the expedience, they are actually judges'personal elements including the hunch, traditional beliefs, likes and prejudices, etc.. Cardozo doesn't refuse to talk about these elements, which is the conclusion from his understanding of the human nature. Cardozo points out that, because judges are human beings, they are influenced by these personal elements. In the meanwhile, he particularly emphasizes that these elements are just possible acting ways but never the whole judicial process. So, on the one hand, Cardozo criticizes the argument that judges'task is to find some objective truth, never being influenced by judges'personal elements, on the other hand, he criticizes the view that exaggerates unduely judges's personal elements, for instance the view that the judicial process is the one feeling the judgement. At the end of this chapter, I analyze Palsgraf, DeCicco and Allegheny to understand the application of these methods further. Chapter 4 discusses the problem of how to make a choice among different methods, in other words, the problem of ascertaining the standard of judges'balancing interests. The problem of ascertaining the standard connects with what the law is and the end of the law. In my view, what the law is and the end of the law is acturally the inner standard and outer standard taken reference to when judges balance interests. As to the problem of what the law is, Cardozo objects to defining it too narrowly. In his point of view, judgment, the general body of doctrine and tradition, and a principle, a rule or a standard which will probably embodied in a judgment can be termed as law, because they can support a prediction. However, rules, principles and concepts are not absolute, eternal, they are just hypotheses and yield to the impact of facts unforeseen. When they are unable to predict, there are some needs for judges to create new rules, which is the process of the growth of law. The methods which realize the growth of law are ones discussed above. According to Cardozo, when judges balance interests, how to make a choice among these conflicting methods is determined by judges'understanding of the end of the law. In my point of view, Cardozo's thought of the end of the law is influenced by the thought of Jhering and Pound. Cardozo points out that, the development of the law is conscious and has its end. In different cases, the end of the law has its different embodyment. According to different cases, judges make different decisions. Generally speaking, the standard which judges resort to is an objective one. Then, through analyzing Sun Printing and Kent, we can understand Cardozo's conception of the end of the law better.Chapter 5 discusses the philosophical foundation of Cardozo's thought of interests-balancing. In my view, the philosophical foundation is pragmatism. The dissertation develops its discussion from three aspects below, firstly, the paradox between the stability of law and the emotion of law. In Cardozo's point of view, there are many paradoxes behind the law. Here I just analyze the paradox between the stability and emotion in order to show Cardozo's general attitude to treat these paradoxes. Cardozo attempts to find some co-ordinating principle to realize the compromise between the opposites. Here I just take MacPherson as an illustration to represent Cardozo's attempts to co-ordinate stability realized by stair decisis and emotion to correspond to social life. Secondly, in the judicial process, the truth is relative, which means that rules, principles and concepts are not absolute, eternal, they are just hypotheses, as is shown in chapter 4. Here I mainly focuses Cardozo's analysis of the maxim of stair decisis, and take Klein as an example to explain it. Thirdly, Cardozo's conception of instrumental function of law. He brings forward a standard of testing the function of law by results. This is obviously embodied in In re Rouss.Chapter 6 discusses the social foundation of Cardozo's thought of interests-balancing. Ultimately interests-balancing of judges lies in society, because judges read the book of society although they confront specific cases. During the process judges discover the idea of morality and liberty which do not lie in the heart of judges themselves but are disclosed by social mind. Concretely speaking that the social morality involves the relationship between law and morality, which originates from the question of justice. The justice which Cardozo quests for is the one considered as a jural norm. For him the justice is so much of morality as juristic thought discovers to be wisely and efficiently enforcible by the aid of jural sanctions, from which the conception of justice is recognized as legally organized or organizable morality, and to some extent the moral norm and the jural one have been brought together, and what the law demands people to follow is the principle and practice of persons whom the social mind would rank as intelligent and virtuous. All that embodies in Meinhard. The liberty which Cardozo deems are also social liberty. Cardozo holds that liberty is not absolute but have bounds, which embodies in the freedom of thought, speech and ecnomics. Then, how to draw the line? Cardozo analyses the line by Ordered Liberty which embodies in Palko. But the liberty and morality is also the reflection of social mind which is strong and preponderant opinion. Judges balance among interests by appealing to the principle and practice of persons whom the social mind would rank as intelligent and virtuous. In the process of judges'interpreting the social mind, judges play their creative role narrowly.The temporay conclusion assesses Cardozo's thought of interests-balancing simply. In the end of the dissertation, it puts forward a question for further consideration, that is, how can we ensure the power of judges in balancing interests without getting into judges'tyranny and how can the exercise of such power be recognized and accepted by the society?...