What does pragmatism mean? "legal growth" in the eyes of pragmatic judges.

The Essence of Judicial Process explains American Justice Cardoso's pragmatic judicial philosophy and depicts an experienced and growing legal world in the eyes of pragmatic judges. There are many similarities between China's judicial practice and pragmatism, but they are far apart.

Keywords Cardoso; Pragmatism; Legal growth; Justice in China

The Essence of Judicial Process is a classic that Posner evaluated as "the judicial philosophy in which a judge systematically tries to explain how to conduct judicial reasoning for the first time and a judge seriously tries to clearly explain his practical judgment for the first time", and systematically expounds the pragmatic judicial philosophy formed since the arrogant American judge Holmes. This paper attempts to interpret the world view of judicial philosophy behind the essence of judicial process from the philosophical background of pragmatism.

First of all, "the life of law is not logic, but experience"

Cardoso's philosophical thought originated from American pragmatist william james. In legal thought, he integrated Holmes' pragmatic jurisprudence and Pound's sociological jurisprudence. The world in the eyes of pragmatists is an empirical world. "Experience" is not a kind of material or spirit, but a kind of "overall change", which includes "what" and "how", facts and human values, and subjective and objective aspects. Therefore, the world of experience is an uncertain world. There are no pre-existing eternal laws and innate ideas, and there are no external facts to follow. Therefore, we must reflect on life itself from a concrete and holistic perspective in order to seek ways of action. Our reflection leads to action, and the experience of action constantly accumulates new beliefs. Because these things are continuous, all our cognition based on actions and all our knowledge based on human actions are formed by this continuous evolutionary process. As long as human beings are still thinking and acting, this evolutionary process will never end. This is a world where knowledge and technology are constantly developing. As far as the law is concerned, it is uncertain, and Cardoso thinks this uncertainty is inevitable. Of course, "uncertainty" does not mean that the legal order is arbitrary or chaotic. Just avoid literally solving problems, avoiding unchangeable principles and closed systems, and pursuing concreteness and appropriateness, facts and actions, the average among individuals, and the average among individuals. In this pursuit of facts and experience, the law constantly corrects itself and evolves and grows. Holmes believes that judges must explore the past rules with creative minds, and provide convenient legal rules and legal actions that can serve people's lives for the present world. In other words, "the life of law is not logic, but experience", but law is not a simple accumulation of experience, it needs creative thinking and practice, which is one of the tasks of the judiciary. Cardoso inherited Holmes' point of view, and from the standpoint of sociology and sociology and law, he pointed out more clearly that "revision is the growth of law. This is the life of the law. " When the social reality has changed, there are new situations that cannot be covered by the law, or people's understanding of justice has changed, the law should also keep pace with the times. Law is constantly changing and progressing in the process of constantly obeying the legitimate requirements put forward by social progress and constantly adapting to reality.

Second, "reading the law from the prism of evolution"

As a guide to action and a norm of judgment, law is uncertain in the long run, but stable in a short time. The development of law is manifested in its subtle growth, thus avoiding the chaos brought about by large-scale changes. Cardoso summed up three types of cases that judges have to face from his own judicial experience: the first type is cases with simple facts and simple application rules, and the judge should think about "how to apply legal rules to facts"; In the second case, the facts are clear and the rules are determined, but there are problems in the application of the rules, and the answer is often not unique, which requires the judge to consider all aspects and make a comprehensive judgment; The third category is "difficult cases". "In these unusual cases, the relevant rules are still lacking, or there is a mysterious uncertainty, so the court may make a variety of judgments." That is to say, faced with the same facts, different judges "can find reasonable or quite convincing reasons to support one conclusion or another". Among the above three types of cases, the first two types of cases constitute most of the court's affairs, and their number far exceeds the third type of cases. In the common law system, there are corresponding precedents for the trial of the first two types of cases. It can be said that the main task of the judge's judicature is to follow the precedent and point out the limit of "experience" in the judicial decision by following the precedent, so as to realize the justice and unity of the judicial decision and ensure the logic, consistency and coherence of the law.

It is the "difficult cases" that promote the evolution of law, which appear in the blank of positive law and when written law and case law are insufficient to meet the needs of judicial decisions. In the face of these cases, judges need to find the "implied meaning" of legislators by emphasizing the utilitarian rule and taking whether it meets the goal as the basis and standard to test the truth, so as to fill the "blank" and maintain the logic, coherence and consistency of legal rationality. In this process, the judge reconciled the stability and progress of the law and made the growth of the law possible. After the new judgment comes into being, it becomes a precedent, and the rules and principles it reveals will affect the judgment of similar cases in the future. But these new rules and principles, like the ones they replace, are not the final truth, and need to be tested by experience to prove their value and strength. Cardoso believes that the rules and principles of case law have never been regarded as the ultimate truth. He compared the court to a major legal laboratory, and judges constantly tested whether these rules and principles were legal and reasonable in the judicial process. "In this endless process of inspection and re-inspection", the dross will be discarded, and the judge's mistakes and paranoia will be erased; All truly pure, reasonable and exquisite rules and principles facing the expanding future will be preserved.

The legal pursuit of pragmatic judicial philosophy of gradual change, attaching importance to the future and paying attention to the consequences is vividly reflected in American legal practice. On the principle of "following precedent", American law shows great flexibility and flexibility, and the US Supreme Court often changes previous judgments. For example, on the issue of apartheid, the Federal Supreme Court initially confirmed the principle of "segregation but equality" through precedents, and later abolished it under the resistance of blacks, confirming the principle of "non-segregation".

Thirdly, pragmatism in China's context is "case facts" and "objective truth".

China people have always been known for their pragmatism. Then, will the application of China's so-called "pragmatism" in the judicial process produce the same brilliant result as Cardoso's pragmatic judicial philosophy? When the author examines China's judicial practice with the above-mentioned world view of judicial philosophy, he finds that the facts are quite different. As mentioned above, the world in the eyes of pragmatists is "experience", and "experience" is an activity permeated with subjective factors such as values and personality characteristics and the influence of external environment. Therefore, the "case facts" in pragmatic judicial philosophy are not naturally formed, but artificially created, which are constructed according to the rules of evidence law, court rules, tradition of compiling cases, defense skills, judge's ability and legal education rules. On the one hand, pragmatic judicial philosophy observes and constructs the facts of a case through existing laws or precedents, on the other hand, it is alert to the human factors in the construction process, adopts detailed factual descriptions and exquisite techniques, and corrects or challenges the previous viewpoints through constant "experiments".

In the context of China, objective truth has always been China's pursuit of justice, which requires a thorough investigation of the truth of the case. Further, it is to pursue judicial certainty and strictly control the judge's subjective judgment. However, the objectivity and judicial certainty of case facts will not appear because of the belief in objective truth. On the contrary, the over-emphasis on objectivity supports and strengthens the investigation power of judges, and even makes them go beyond the law to discover facts. In the judicial process, judges, like historians, need to face the past facts and can only reconstruct and identify the "case facts" according to the fragments of the past facts. Although the "objective truth" in China's context is also a kind of reconstruction and recognition, it is essentially different from the shaping process of "case facts" in pragmatic judicial philosophy. Because our country's judges have less legal constraints and self-restraint of the right to construct facts, they do not have the premise of restricting judges in the pragmatic judicial concept. In short, pragmatic judicial philosophy respects "experience" and "case facts", but is wary of artificial over-construction. From this perspective, there are essential differences between China's judicature and pragmatism's judicature.

Law is based on "experience" and tends to facts and actions. It is uncertain, and presents a state of gradual development with the development of society. Studying Cardoso's works, unscrambling pragmatism judicial philosophy, and reflecting on one's own view of judicial philosophy, pragmatism can fully play its due value and role in China.

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[3][ America] benjamin cardozo, Dong Jiong, Peng Bing translation. The growth of law, the paradox of law [M]. Beijing: China Legal Publishing House, 2002.

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