The Judge-made Law From The Perspective Of Legal Pragmatism

In the context of the common law tradition, some of American legal pragmatists believe that judge-made law is inevitable and important from the practical point view, because the judge-made law which reflects the needs of humanity, can improve the objective requirements of legal uncertainty and make up for deficiencies in formal logic. In Western countries, the so-called controversy over the judge-made law is started under the background of the dominating of legal formalism and common law legal culture. In addition to that, judge-made law in the common law traditional countries is not unrestrained or random. It must be subject to restrictions about precedent principle, the blank legislation principle and so on. So this judge-made law means that the judger is the one who is still under the law, not making law. At present, China put more attentions on the judge-made law, but there are some potential dangerous, because China's strict sense of the legal formalism has not yet been given sufficient attention and does not have the tradition of common law. To this end, China should not unduly favor the judge-made law.