Between The Closure And Opening Of The Judicial Process

The law must be stable,but not immutable.The law,whether static or changing,can also be devastating to law if it does not achieve a balance.Cardozo believes that the function of the judiciary is dynamic.Judicial creativity needs to be exerted in the judicial process to make up for the gaps in the legislation.Cardozo stressed that the power of the judge to maintain the progress and development of the law,that the nature of the judicial process is open.However,it is worth noting that Cardozo also emphasized the certainty and stability of the law.In some occasions,the nature of the judicial process should be closed.For Cardozo,justice is the process of compromise between stability and progress.Cardozo's reconciliation of the opposite of legal stability and progress runs through his jurisprudence.However,whether or not Cardozo was frank conducted a heated discussion in the academic field that he expressed and explained the preciseness and openness of his ruling.Some people think Cardozo is deceived master,that his ruling and explain the reasons for the ruling inconsistent.Some people make this inconsistency into the inconsistency between the closeness in the judicial practice of Cardozo and the openness outside the judicial practice,That is to say,Cardozo insists on the stability and accuracy of the law in his judicial practice,but emphasizes that judges exert their creativity to keep the law progressing with the development of the society in his writings outside the judicial practice,and consider this as the manifestation of the division of judicial consciousness of Cardozo.I think this view is a major misunderstanding of Cardozo,which completely distinguishes Cardozo's judicial practice from judicial practice,rather than considering it as an integrated whole.In fact,Cardozo has consistently adhered to a unified sense of justice in his judicial practice and other works outside the judicial practice.He insists on the reconciliation of the stability and progress of law and upholds the unification of legal uncertainty and certainty.We can draw the relevant conclusions from his judgments,the writings made according to his speech,such as?The Nature of the Judicial Process?.Cardozo's greatness and his reputation for being highly dependent on the combined effect of his judicial practice and judicial practice.Therefore,Cardozo's judicial awareness is not divided,but unified.The article is divided into four parts.The first part introduces a misunderstanding of the division of judicial consciousness of Cardozo.According to this theory of division,Cardozoemphasizes the openness of the judicial process outside his judicial practice.However,he appears to be closed in judicial practice.They consider this inconsistency or even contradictory performance illustrates Cardozo's concealment.The second part is the refutation and causal analysis of this misunderstanding of the division of Cardozo's judicial consciousness.Through the comparative analysis of cases similar to the one embodying the closed case and the analysis of the arguments raised by the skeptics,this article argues that Cardozo take into account the openness and the closure,in order to refute the challenge to the division of the judicial consciousness of Cardozo.And analyzed the reasons why Cardozo was misunderstood.The third and fourth parts are the embodiment of Cardozo's judicial consciousness unity inside and outside the judicial practice.The third part is the unification of judicial awareness outside of Cardozo's judicial practice,including the law stability and progress,and the reconciling of uncertainty and certainty.The fourth part is the unification of judicial consciousness in the judicial practice of Cardozo.This part mainly discusses the open pursuit pursued by Cardozo in his judicial opinion,and how to correctly recognize Cardozo's judicial practice.The first part shows the questioning of Cardozo.The second part is the analysis of the refutation of the question and the reason of the question.The third and fourth parts are the unified manifestation of the unity of judicial consciousness of Cardozo both inside and outside the judicial practice.