On Cardozo 's Theory Of Judicial Philosophy And Its Enlightenment To China' S Judicial Construction

There is a famous judge in American judicial development history since the 20th century. Although he is not the creator of the thought of the judge-made law, but the thought was unable to be gradually recognized in the common law and the judicial tradition of Anglo-American law system was unable to be innovated and transformed without the advocating and judicial practice of his. That is Benjamin Nathan Cardozo.Cardozo’s judicial theory and judicial practice has attracted much attention of many scholars at home and abroad all the time. In recent years, since the dramatic changes of our social and economy, and when the economic development is at the corner of the road at the same time the judicial tradition has to be innovated to adapt to the social and economic transformation. Therefore, Chinese scholars also make research on Cardozo from preliminary attention and translation stage to the deep research and analysis phase, different scholars interpret his works thoroughly from different angles, comparing his theory with the theory and practice of judicature in our country, and researching from the requirement of era background, the judicial reform direction and the current situation of our country’s judicial system to seek the possibility to provide a reference for the development of Chinese judicial philosophy theory and judicial practice from his judicial theory.In this article, the author will explore deeply from the life, work experiences and other aspects of Cardoso in order to find out the reason for which Cardozo can put forward<the nature of the judicial process>as a judge, the background and content of his judicial philosophy theory to propose, and the essence of thought of the judge-made law. And furthermore, the author will combine them with our country’s judicial practice which are in a critical period of judicial reform, to learn and reference how did he use the theory of judicial philosophy guide himself to judge in the judicial practice, and meet the demand of the stability of the law and the development of the society.The article is divided into three parts:in the first part, the author introduces the theory source of Cardozo’s judicial philosophy, Which can date from the historical background of life at that time, his family misfortune and the influence; analyzing the basis of the judicial theory of pragmatism and justice theory; discussing the target of judicial philosophy theory which means why do the judge can create the rule of law and what are the limitations.In the second part, the author analyzes and combs the application of Cardozo’s judicial philosophy theory in judicial practice, namely four kinds of judicial method and related cases.In the third part, the author first analyses from the aspects of theory of our country, including the similarity of time backgrounds, the plight of the legal system, the defects of legal reasoning, the defects of case guidance system, and discuss the applicable possibility to put Cardozo’s judicial philosophy theory and method in practice in our country, combining our country’s judicial cases, the professional literacy of the judges at the grass-roots level in our country and the judicial reform direction. And then find out the revelation we can obtain, including perfecting our country’s judicial judgment theory system, paying attention to the professional training and the improvement of professionalism, attaching great importance to the stability of the law and the coordination of social development.