The Study On Cardozo's Thought About Making Of Law By Judges

Since ancient times, the law was considered to be the incarnation of fairness and justice, and the guarantee of freedom and right. It's today when it is popular to govern country by law, the important status of the law is self-evident. But in the process of making law, the legislator is impossible to foresee everything in future, so the law has defect by all means. What's more, the law must be content to society's need, and society is placed in ceaseless change and development, so, unavoidably, law and society would become disjointed. As to the problem, from ancient to modern times, a lot of Chinese and foreign jurist has granted judges the function of making law to make up for the defect of law. As to the thoughts that the judge makes law, the Anglo-American law system is comparatively developed, Benjamin N. Cardozo is one of well-known g,rand justice in history of the USA, his thoughts about making of law by judges is unique. His thoughts were influenced by times background, living environment and some judges or jurists, such as Holmes, Pound, Gray. Benjamin N. Cardozo thought that the function of making of law by judges is certainty and limited. Because of social development, the limitation in human knowledge, uncovered areas in written law and the duty of judges, the function of making of law by judges is certainty. At the same time the function is conditioned by written law, precedent, custom and judge's own ability. The limitation lead to just exercise of power. Cardozo also confirm the status of the law made by judges, that is, the law which the judge makes were subject to constitution and positive laws. Cardozo's thoughts about making of law by judges were both received well and critically. In appearance, his thought directly reflected erosion and remedy by jurisdiction to the legislative powers; in the middle extent, it reflect the conflict between justice and order; in essential part, its root is the limitation of law. The thought is an original view and has profound effect. So to speak, it's a landmark in the whole history of law.