Cardozo's View On Judge-made Law

If you want to talk about justices who have a great impetus to American law,Benjamin·N·Cardozo is definitely among them.His judicial thinking is rich in content and has a great influence,which is favored by many scholars at home and abroad.At the beginning of the 20th century,the United States is in a critical period of transformation in the agricultural society to industrial society.Many laws have not adapted to the development of the society at that time.The limited human reason and the law of unavoidable defects make it hard to avoid the appearance of blank area.These prompted judges to give play to their subjective initiative to create new rules,so as to make a fair decision.Cardozo combined the function of the judge with the pragmatism,and formed the idea about the judge-made law,which promoted the judicial reform in the United StatesThis paper focuses on the contents of Cardozo's thought about judge-made law.It introduces the theory and judicial method of Cardozo's thought about judge-made law.By analyzing some typical cases of judge Cardozo,we can study how judge Cardozo used his thought about judge-made law to make a decision.The structure of this paper is as follows:the first chapter mainly describes the formation of Cardozo's thought of judge-made law.This section introduces the personal experience of Mr.Cardozo,who has extensive judicial experience as both a lawyer and a justice.Cardozo is in the transformation period of American society.The transformation from agricultural society to industrial society makes the previous laws not adapt to the development needs of the current society,and the change of social structure promotes the judicial reform in the United States.His thought about judge-made law is based on the thoughts of predecessors.Such as Holmes's pragmatism,gray's theory of judge-making law and pound's social law thoughts.These constitute the theoretical basis of his thought about judge-made lawThe second chapter mainly deals with the content of Cardozo's thought about judge-made law.This part introduces that the precedent is the premise,but the precedent is not the same.When the precedent is no longer suitable for the development of society,when there is a blank or fuzzy area in the law,what the judge needs to do is to play the subjective initiative and create legal rules as a new precedent.In the judicial process of judge-made law,Cardozo advocates four judicial methods:philosophical,historical,customary and sociological.In order to prevent judges from abusing the power of law making,Cardozo advocated to restrict the power of judge-made law.The rules created by judges should be in line with the ultimate goal of social welfare,and they should pay more attention to the actual social life,so as to make the judgment not only not deviate from the track of justice,but also achieve a good social effect.The third chapter mainly deals with typical cases of Cardozo's using thethought about judge-made law.Cardozo not only paid attention to the study of theoretical knowledge,but also paid attention to the accumulation of practical experience.Cardozo's classic cases mainly focus on infringement,contract and other fields.Through the detailed analysis of the cases,we can understand how Cardozo used the idea of judge-made law to try cases.He connected difficult legal issues with the actual social life,and made decisions in line with social justice and people's expectations.Cardozo's judicial opinion is particularly important,and its combination of rhetoric and pragmatism is praised by everyone,which is used by many judges for reference.The fourth chapter mainly discusses the influence and evaluation of Cardozo's thought about judge-made law.There is no agreement on the evaluation of Cardozo's thought about judge-made law.And there are both praise and criticism in the legal circle.The author also expressed his own views.Cardozo's thought of judge-made law has overall a significant impact on the judicial reform in the United States.It criticizes the curing the judge thinking of legal formalism.He thinks that the judge is not "a porter" law and shall be brought into play the subjective initiative.Judicial method was employed to reinforce the legal gap creation of the new rules,in order to ensure a fair and just.