An Attempt To Analyze The Impact Of The Common Law On Benjamin Cardozo's Judicial Process

As one of the greatest justices in the history of the America, Cardozo had a legendary judicial life. However, few people bother to explore seriously the profound theoretical origin of his judicial thoughts.Cardozo's judicial thoughts was situated in a age of "Case Method", "Feeder reform" and "Social Darwinism", "formalism", in which the common law was seriously in trouble. There was a number of hindering factors in the administration of justice in the field of social development and progress, such as "substantive due process of law", "freedom of contract" and other popular ideas of justice, which ignored the needs of the community. Cardozo had worked together with the other great judges to practically transform and re-conceptualize the rationality in the common law, as well as its ideas of fairness and justice. His skillful judicial art in administration of justice had successfully introduced new input into the common law, while retaining the basic common law doctrine of stare decisis. The conceptual interpretation is not only one of Cardozo's unique skills in the administration of justice, but also his skill in employing the common law philosophy in his court. Practical reasoning some rules set forth by precedents is the realization of his doctrine of four kinds of method in studying cases. Therefore, when struggling with legal "formalism" and legal "realism", Cardozo was also actively looking for change and development of the dominating doctrines behind these jurists' thoughts: reasonable consideration of the common law tradition in a new era.First, Cardozo insisted and never forgot that the judges' mission was to find the premise of the facts of the case and settle the dispute on the basis of precedent. So, the judges' proper role is to resolve disputes. The judge heard the case in light of local conditions and the social circumstances of the case at hand, which had provided a stage for the use of the common law doctrines. Such practice thus destroyed the previous rigid understanding and using of the common law and created the conditions for promoting the welfare of society as a whole.Second, Cardozo argued that judges should make law in the gap of the legislation in hard cases. The idea of judge made-law was first interloped clearly by Cardozo and has had a vital significance in the area of the administration of justice in the United States. The core of the common law system is the judges' rationality, the rationality extending from the ideas of equity and justice.Third, Cardozo thought that the history, traditions, habits and methods of sociology should seek to solve all kinds of hard cases with the spirits of common law. These methods would be able to truly reflect the needs of the community, and those rigid and out-dated judicial thoughts of the common law should be reasonably eliminated, retained the form of implementation, the content has changed.The last but not least point is that Cardozo had been looking for the source of the common law as much as possible in its application to some hard cases, and giving a reasonable interpretation to the change of the applicability of the common law. Meanwhile , Cardozo has given a reasonable re-definition or explanation to some hard cases according to the demands of his time and society. By doing so, Cardozo has not only made sure that his judgments have not been divorced from the spirits of the common law, but also achieved "reasonable deviation", social equity and justice.This thesis attempts to prove that the common law tradition has been renewed with vitality through Cardozo's unique teaching of practical conceptualism, unique perspective employed in judicial proceedings, and skillful artistry in the administration of justice. Cardozo pursued the teaching of practical conceptualism that was based on the needs of society to its ideological foundation for the administration of justice, Instead of the usual or we are talking about pure pragmatism or social jurisprudence, and so on.