卡多佐法律成长论研究
发布时间：2019-01-28 09:50
【摘要】： 卡多佐被公认为美国历史上最伟大、最智慧的法官之一,在美国的司法界、法学界有着极高的声望,则其司法理论必有独到之处。笔者以为卡多佐的司法理论可以概括为法律成长的理论,本文首先较全面地介绍了卡多佐法律成长思想的背景,转而采用文本细读的方法着重介绍了法律成长的起点、成长的路径、成长的方法、成长的辅助哲学,全面分析了法律如何成长的问题,揭示了卡多佐的平衡艺术和实用主义思想。卡多佐身处美国社会的大转型时期,系统研究卡多佐的法律成长理论,有助于深入思考法官在面对转型期法律成长之时的平衡之术和法律实用主义的价值所在,进而对目前同样处于转型时期的我国,对我们的立法、司法给以启迪。 卡多佐的法律成长理论有着其独特的背景和渊源。19世纪末20世纪初美国正处于社会转型时期,社会剧变,之前主要回应农业社会的法律已无法满足变化了的社会需求,法律亟需变革;当时盛行的法律形式主义逐渐失势,正遭到现实主义者和实用主义者的猛烈攻击,卡多佐正是推崇实用主义的法律实用主义者。如此,卡多佐的以实用主义基础的、积极呼应社会剧变的法律成长理论产生了。 “法律必须稳定,却不能静止不变。”法律追求稳定性,但是社会在变,所以法律必须成长。法律成长的路径有立法成长、法律重述和司法成长,由于天然的正当性,立法成长法是法律成长最根本最重要的路径,法律重述则是要求法学界对法律的成长做出一些贡献,而作为一名法官,司法成长是卡多佐研究的重心。司法成长理论包括司法成长的必要性和可能性、司法成长的案件类型、司法成长的模式和司法成长的方法。其中,司法成长的方法又是司法成长理论的核心,具体包括哲学的方法、历史的方法、传统的方法和社会学方法。实践当中需要方法的选择,这种选择是在它们所代表的社会利益的衡量之下的选择。这样的选择,需要一些哲学的辅助,就是对法律目的和法律功能的理解,在正义和一般效用的指导下,促成方法的选择、法律的成长。 对卡多佐法律成长理论的评价有赞许有批评,批评者或认为该理论并非一个完整的理论体系,或认为该理论可能会导致法官专制,或认为该理论不能给法官提供一个最终答案。笔者以为卡多佐的法律成长理论是一种平衡的艺术,一种实用主义的法哲学,一种自省的意识。它本意不在于构建一个逻辑严密的理论体系,也不在于告诉法官解决案件的直接答案;它的价值在于一种方法上的指导,指导法官避免思维过于直接、过于武断的方法,指导法官面对法律本身所包含的诸多矛盾时该如何去协调,它是一种度的把握、一种平衡的艺术、一种实用的哲学。
[Abstract]:Cardoso is recognized as one of the greatest and wisest judges in American history. The author thinks that Cardoso's judicial theory can be summed up as the theory of legal growth. Firstly, this paper introduces the background of Cardoso's thought of legal growth in a more comprehensive way, and focuses on the starting point of legal growth by using the method of text reading. The path of growth, the method of growth, the auxiliary philosophy of growth, the comprehensive analysis of how the law grows, reveals Cardoso's balanced art and pragmatism. Cardoso is in the period of great transformation of American society. Studying Cardoso's theory of legal growth is helpful to think deeply about the balance of law growth and the value of legal pragmatism. Furthermore, it enlightens our legislation and judicature in the same period of transition. Cardoso's theory of legal growth has its unique background and origin. At the end of the 19th century and the beginning of the 20th century, the United States is in a period of social transformation. The law is in urgent need of change; Legal formalism, which was prevailing at that time, was being attacked by realist and pragmatist, and Cardoso was the legal pragmatist who advocated pragmatism. Thus, Cardoso's theory of legal growth, based on pragmatism and responding to social upheaval, came into being. "the law must be stable, but it cannot stand still." The law pursues stability, but society is changing, so the law must grow. The path of legal growth includes legislative growth, legal restatement and judicial growth. Due to its natural legitimacy, the law of legislative growth is the most fundamental and most important path of legal growth, and the legal restatement requires the legal circles to make some contributions to the growth of law. As a judge, judicial growth is the focus of Cardoso's research. The theory of judicial growth includes the necessity and possibility of judicial growth, the types of cases, the mode of judicial growth and the methods of judicial growth. Among them, the method of judicial growth is the core of the theory of judicial growth, including philosophical method, historical method, traditional method and sociological method. In practice there is a need for a choice of methods, which is a choice based on the measure of the social interests they represent. This kind of choice, needs some philosophical assistance, is to understand the legal purpose and the legal function, under the guidance of the justice and the general utility, promotes the method choice, the law growth. Some critics think that Cardoso's theory of legal growth is not a complete theoretical system, or that the theory may lead to the despotism of judges, or that the theory can not provide a final answer for judges. The author thinks that Cardoso's theory of legal growth is a kind of balanced art, a pragmatic philosophy of law and a sense of self-reflection. Its original intention is not to construct a logical theoretical system, nor to tell the judge the direct answer to solve the case. Its value lies in a kind of method guidance, instructs the judge to avoid the way of thinking too direct, too arbitrary, instructs the judge how to coordinate in the face of the many contradictions contained in the law itself, it is a degree of grasp. A balanced art, a practical philosophy.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D909.712
[Abstract]:Cardoso is recognized as one of the greatest and wisest judges in American history. The author thinks that Cardoso's judicial theory can be summed up as the theory of legal growth. Firstly, this paper introduces the background of Cardoso's thought of legal growth in a more comprehensive way, and focuses on the starting point of legal growth by using the method of text reading. The path of growth, the method of growth, the auxiliary philosophy of growth, the comprehensive analysis of how the law grows, reveals Cardoso's balanced art and pragmatism. Cardoso is in the period of great transformation of American society. Studying Cardoso's theory of legal growth is helpful to think deeply about the balance of law growth and the value of legal pragmatism. Furthermore, it enlightens our legislation and judicature in the same period of transition. Cardoso's theory of legal growth has its unique background and origin. At the end of the 19th century and the beginning of the 20th century, the United States is in a period of social transformation. The law is in urgent need of change; Legal formalism, which was prevailing at that time, was being attacked by realist and pragmatist, and Cardoso was the legal pragmatist who advocated pragmatism. Thus, Cardoso's theory of legal growth, based on pragmatism and responding to social upheaval, came into being. "the law must be stable, but it cannot stand still." The law pursues stability, but society is changing, so the law must grow. The path of legal growth includes legislative growth, legal restatement and judicial growth. Due to its natural legitimacy, the law of legislative growth is the most fundamental and most important path of legal growth, and the legal restatement requires the legal circles to make some contributions to the growth of law. As a judge, judicial growth is the focus of Cardoso's research. The theory of judicial growth includes the necessity and possibility of judicial growth, the types of cases, the mode of judicial growth and the methods of judicial growth. Among them, the method of judicial growth is the core of the theory of judicial growth, including philosophical method, historical method, traditional method and sociological method. In practice there is a need for a choice of methods, which is a choice based on the measure of the social interests they represent. This kind of choice, needs some philosophical assistance, is to understand the legal purpose and the legal function, under the guidance of the justice and the general utility, promotes the method choice, the law growth. Some critics think that Cardoso's theory of legal growth is not a complete theoretical system, or that the theory may lead to the despotism of judges, or that the theory can not provide a final answer for judges. The author thinks that Cardoso's theory of legal growth is a kind of balanced art, a pragmatic philosophy of law and a sense of self-reflection. Its original intention is not to construct a logical theoretical system, nor to tell the judge the direct answer to solve the case. Its value lies in a kind of method guidance, instructs the judge to avoid the way of thinking too direct, too arbitrary, instructs the judge how to coordinate in the face of the many contradictions contained in the law itself, it is a degree of grasp. A balanced art, a practical philosophy.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D909.712
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