Judicial Process And Social Consequences

Emphasizing activity, paying attention to effect, and promoting enterprising spirit is the main characteristic of pragmatism philosophy. In pragmatism philosophy theory, you should act positively to survive, make some progress to develop, and you should judge something by its effect. James points that the method of pragmatism, is not some special result, but only a method to find the direction ahead. This method is not to consider the theory, the principle, and the"essential"thing, But to consider the results, effect and fact. John Dewey points that the theories, concepts are all supposed tools, their effects lie in their results and consequences, and truth is just a kind of effective tool. Richard Mckay Rorty points that, truthfulness and exactitude is a problem of social practice, In other words, reality and exactitude can only be achieved according to social conditions, person's demands and its usefulness to human beings. For legal theories, we can learn much from pragmatism philosophy. We can't just observe the abstract legal principles and rules strictly and deadly, we should pay more attention to the social consequences and results of the judicial decision.Legal pragmatism, represented by Oliver Wendell Holmes, Benjamin N.Cardozo and Richard A. Posner,on one hand emphasizes the important role of logic in law, affirms the value of stability and certainty of law, and regards the rule of law as a kind of virtue. On the other hand it also claims that the judge should pay more attention to the effect law, and he should measure various social consequences in the judicial process. According to legal pragmatism, the judge should well consider the needs of his era, the social welfare, the public policy, and people's moral concept etc. Holmes says that the life of law doesn't lie in logic, but lies in experience. Cardozo says that the ultimate purpose of law is the social welfare. Posner says, the judge has to make a policy choice, but what determines the choice is the inquisition and evaluation of various social consequences (namely the rule of law, the benefits of both litigation parties, the economy, the public order, the civilization, the future―― simply saying the social results).The legal interpretation has a close connection with social consequences. Interpretation is not only a creative process, but also a result-oriented process. The hermeneutical theory of Hans-Georg Gadamer points that, interpretation is not only to interpret the text objectively. It also includes our subjectivity and creativity. The interpreter also participates in the process and plays a constructive role. Thus in the process of legal interpretation, we can not only interpret the legal text objectively, we have to consider the social consequences and the social development. There are various methods of legal interpretation, such as text interpretation, system interpretation etc. But these are the social consequences which determine the interpretational method we choose.Therefore, we believe, in the judicial process(not only just in the difficult case), the judge should well consider the social results, in other words, the judge should well consider the needs of his era, the social welfare, the factor of efficiency, the common sense and common feeling of people, people's living habit and business practice, the prevalent moral concept and justice idea, the popular political theories, the public policy and public order, the need of civilization, and the trends of social development etc. But in the meantime, we don't deny the value of stability and certainty in law, we admit that the logic plays an important role in law, and we regard the rule of law as a kind of virtue indispensable.For this kind of standpoint, we can call it "the consequential theory of legal pragmatism ". In following text we analyze some possible questions of this kind of standpoint, and we believe, it is not only applicable to common law system, but also applicable to regulatory law system; It won't cause "legal nihilism" or break the virtue of the rule of law; It will not put the judicial section under the pressure of administrative section and make the judicial decision politicized; It isn't only applicable to difficult case; It is not necessary for the judge to have excessive knowledge and quality. After that, we analyze two typical cases to support and explain our standpoint further.Such a kind of standpoint has a very important meaning to the judicial practice. And theoretically, it transcends the natural law theory and the positivism legal theory; it transcends the historical legal theory and the utilitarian legal theory; it also transcends the formalism legal theory and realism legal theory.