Research On American Pragmatic Judicial Philosophy

Judicial philosophy of American Pragmatism originates in an age which Classical Pragmatism departs from traditional metaphysics in quest of the new philosophical method.The pragmatism way of understanding the world,pragmatic theory of truth,as well as the practice experience and effect on the pragmatic methodology fit the American national spirit which is more pragmatic than that of the traditional western world.The flourish of the more empirical legal philosophy,such as pragmatic of law,realism jurisprudence of interests,sociological jurisprudence and so on,provides method and basic proposition for judicial philosophy of American Pragmatism,Holmes,Cardozo and Posner,for example.American pragmatic judicial philosophy begins with the exposition of Holmes,then Cardozo as the successor,practitioner,and interpreters,and with the intellectual navigation of Holmes,Posner brings systematical discussion and revival of judicial pragmatism theoretically.As Cardozo puts it,Judicial philosophy ultimately presents the judge.Pragmatic judicial philosophy also needs to meet contemporary social demands and answer the problems in the ideological tide,as well as to develop and response to other criticism of the philosophy of law in the inheritance of the concept.Since the exploration for the proposition and method persist,judicial pragmatic will continue to write its own history,instead of coming to an end.American pragmatic judicial philosophy,as the pragmatism,precludes abstract concept system.Facing the empirical questions,it constructs the legal world view and scientific methodology under the proposition and judicial practice.Based on the "bad guys" view of the law prediction,Holmes puts the justice in the experience and history of social demands,and the special perspective such as the relation between moral and law helps to construct the basic picture of judicial pragmatism.In the free speech censorship of the Federal Constitution and the Lochner,judicial pragmatism were applied to the concerns on the experiences and social demands.Cardozo endeavors to explain the nature and method of judicial process in his discussion.The contents including precedent,logic,custom,social welfare,personal or common criterion of justice and morality and so on will be represented as judicial technique into the judges.Various categories and types of judges' applicable law in the judicial process are also discussed.Posner's judicial pragmatism systematically discusses the objectivity and autonomy of the pragmatism basis,reveals the essence of factual experience of moral and legal issues in substantive rules,brings economics and other scientific experimental content to the legal shaping,and finally all of these work on and are embodied in the essence of pragmatism style of the judge trial.American pragmatism judicial philosophy formulates the legal world view and its judicial practice on the construction of the judicial process,which is of great significance in understanding and revealing American judicial process.Meanwhile,with Holmes,Cardozo and Posner's works spread,the concept shaping of judicial philosophy will also be internalized in context of the judicial system practice.In China's new round of judicial process,restatement of the pragmatism judicial philosophy has the effect of "by other's fault,wise men correct their own."...