On The Subconscious Element In The Judicial Process

Following the research process of Legal Realism, Cardozo tries to pierce the mysteriousveil of the judicial process, and lays stress on judge’s behaviors which can improve thegrowth of law. Cardozo encourage that justice should hear a case creatively, but he does nottotally discard logic and precedence, instead that he tries to maintain a balance betweencreativity and conservation.Cardozo holds that there should be a positive interaction between law and society, andthen the law may keep flexible. Legal system should grow and develop on the basis ofstability. Judge’s creative judgment is the key element of the growth of law, certainly, thestability and flexibility of law should not be neglected. Once there is an involvement ofautonomous decision of justice, there is the influence of subconscious element in the judicialprocess. So there always are influence factors of subconscious element. Though subconsciouselement is difficult to detect, it can be recognized; even though its action can not be negligible,it is really not unconstrained.In this book which is named as the Nature of the Judicial Process, Cardozo divides theelements which affect the judgment into four categories, named logic, history, accustom andsocial profit. At the same time, he finds that subconscious element is a power which shouldnot be disregarded in the judicial process, but he does not research it specially and deep. Thisarticle tries to discuss the theme here.This article can be divided into four parts except the introduction. The first part isbackground of the whole article, leading out the subconscious element. It tries to discuss thebehavior between creativity and conservation. If judge’s creative judicial actions are allowed,the effect of subconscious element should not be ignored. The second part which gives aclassified interpretation of the subconscious element which is expounded by theory andanalysis of cases is intent to understand the passive and negative effects of the subconsciouselement deeper. The third part intends to find the methods of transcending the negative subconscious element. These methods includes the following five aspects：Judges shouldrespect the positive law and precedence; the judge’s subconscious element should be clarified;the judge’s subconscious element should be externalized; the judges’ judicial morality shouldbe cultivated; the hope of the advancement of the whole legal system is also needed. The lastpart is the conclusion which is to summarize the entire article whose consequence is that thesubconscious element has both passive and negative effects, so we should adopt somecountermeasures to regulate the passive effects of the subconscious element.