Social Utility In Determining The Choice

Cardozo, who is the representative figure of American Sociological Jurisprudence, starting with the judicial process, has discussed broad issues of legal philosophy including the nature, the origin, the growth, the end and the function of law. However, when studying American Sociological Jurisprudence, researchers haven't paid enough attention to Cardozo's thought and there is a phenomenon of simplifying Cardozo's thought in the past study, so they can't see through the underlying profounder matters sustaining Cardozo's thought. The article attempts to discuss Cardozo's sociological jurisprudential thought in a broader background of society and thought. The full text is divided into six major parts altogether.In the first part, the question is proposed and the framework of the argument is established. The article argues that"Social Welfare"is a core term in Cardozo's sociological jurisprudential thought and he uses it in the criterion sense. This can be made clear from the following two aspects. On the one hand, as far as the judicial process is concerned,"Social Welfare"is the standard for judges to make the final decisions, especially in hard cases. On the other hand, Cardozo has been well aware that law is in the continual developing process and he has committed himself to discussing that what ends the current law is to realize and what ends the future law will achieve. For Cardozo this end is the social end, namely,"Social Welfare". So, in his opinion, different kinds of methods and law itself are instruments to realize"Social Welfare". From the analysis above we can safely draw the conclusion that"Social Utility"is the underlying profounder matter dominating Cardozo's thought and we can say that Cardozo constructs his sociological jurisprudence on"Social Utility". Therefore, the article tries to study Cardozo's sociological jurisprudence starting with"Social Utility". The second part illuminates the presentation of Cardozo's"Social Utility". Firstly this part analyzes different methods embodied in The Nature of the Judicial Process which should be used by judges when there are no proper constitutional provisions, positive law or existing precedents. These methods include the rule of analogy or the method of philosophy, the method of evolution, the method of tradition and the method of sociology. Besides, there are many subconscious forces. Among these methods, the method of sociology is the most important. The reason is that for Cardozo the method of Sociology is to realize the increase of"Social Welfare". Secondly this part explains Cardozo's social theory and emphasizes his term"community". For Cardozo the norms of community tend to vary in the following three ways. First, norms within a community are diverse. Second, in any large community, norms vary among different sub-groups, but there exists something in common among people within a broader sphere. The third, behavioral norms vary within a community along the dimension of time. So conflicts within the community are unavoidable and"Social Welfare"provides the final guide to solve conflicts. Thirdly, this part discusses Cardozo's thought of the function of law and for him there is close relationship between the function of law and the end of law. In his opinion, the end of law is"Social Welfare"and the function of law is to ensure the realization of"Social Welfare". Then this part turns to the discussion of the judicial creation.The third part studies the social reasons of Cardozo's"Social Utility". Firstly, the article analyzes the judicial experimentalism which is the embodiment of English and American experimentalism. This means that in the judicial process of common law judges pay more attention to experience in the real life and the principle of stare-decisis makes it possible to comply with past experience. In the judicial process, the function of judges is active. That is to say, judges not only are discoverers of rules but also take on the mission of creating new rules. Secondly, the article expounds the historical background of Cardozo's life. In these periods world-shaking social changes had taken place in America. Concretely speaking, with the industrialization and urbanization, the economy of the USA had made great progress, meanwhile, many social conflicts also became more and more severe. Under these conditions the policy of Laissez-faire with a core of individualism can't adapt to the social needs, progressivism emerges as the times require and lays the intellectual foundation for much stronger and much more extensive interference in the social and economic life by the state power. At last, this part presents Cardozo's argument against formalism. Formalists have been criticized by Cardozo for considering the method of logic as the only one and neglecting the importance of"Social Welfare".The fourth part is mainly about Cardozo's intellectual foundation. Firstly, for Bentham the"Utility"principle includes two aspects, that is, individual's happiness and the social utility which means the greatest happiness of the greatest number and from his perspective individual's interests are essential. Secondly, Mill thinks that individual's development and human's right of liberty are two important facets in his idea of happiness and he argues to harmonize individual interests with public interests. Thirdly, in Jhering's thought of social utilitarianism, he argues that jurists should focus on the ends of law. As far as the law's origin is concerned, law is dominated by social ends. While as for the application of law, law always has close relationship with the real life. In America, the thought of Holmes and Pound influences that of Cardozo greatly. Holmes points out that"the life of the law has not been logic, it has been experience". He opposes to the notion that law are unchanged axioms or mathematics formulas. He stresses the mutual advancement relationship between the development of law and the need of society. Pound also emphasizes the law's end of meeting the social need, at the same time he makes detailed divisions of interests and argues that the preference of interests is not absolute but relative to the special time and space. He maintains that we should arrange interests with the least sacrifice in order to reach the most interests or to realize the most important interest in our civilization. The fifth part analyzes Cardozo's"Social Utility"incarnated in the cases.Firstly, in the field of constitutional area, he doesn't think American constitutional law is invariable but argues that judges should look on the relationship between precedents and the current circumstances with the new eye, so he particularly insists the application of the method of sociology. His thought mentioned above is embodied in legal doctrines of restraining trade and labor unions and in such cases as People v. Charles Schweinler Press and Helvering v. Davis. Secondly in the area of private law (the article mainly chooses cases from the contract law area), the cases, such as Wood v. Lucy ,Lady Duff-Gordon and Allegheny College v. National Chautauqua County Bank, are typical of Cardozo's using the method of sociology. The remaining of this part also discusses the relation between Cardozo and Realists. The article thinks that they have something in common in some respects, but their differences are obvious. This article maintains that considering Cardozo as a realist is improper.The sixth part discusses primarily the limitation of Cardozo's"Social Utility". This part puts the critique on Cardozo's core term"Social Welfare". The article believes that, although for Cardozo the importance of"Social Welfare"is obvious, he hasn't given it an accurate definition or hasn't clearly included something or excluded something. Therefore the result is that the scope of"Social Welfare"is so broad that we may question the availability of it as the criterion proposed by Cardozo. At last, the article argues that such a broad criterion will be a dangerous instrument in weak and incompetent judges'hand and will become the instrument of judges'discretionary tyranny.