卡多佐的法官造法思想研究
发布时间：2019-05-28 17:27
【摘要】：卡多佐的法官造法思想一直以来都受到了国内外学者的关注和研究,虽然他并不是普通法系中第一个提出法官造法思想的,但是这一思想被认可,继而能在美国的司法变革中起到重要的作用,卡多佐功不可没。19世纪末20世纪初的美国,充满了未知的挑战和可能,卡多佐将实用主义理论与法官职能完美的结合到了一起,对美国司法的革新起到了重要的影响,法官造法思想就是他思想的核心。卡多佐的法官造法思想基础是美国普通法在发展过程中所形成的传统和美国法律实用主义哲学。他的思想受到了实用主义法学家霍姆斯、格雷以及同时代的社会法学的代表人物庞德的影响。当然卡多佐法官造法思想的提出也都逃脱不出当时的时代背景,随着工业革命的结束和社会结构的调整,人们的观念也因此发生了巨大的变化,而这些变化同样也带动了美国在司法方面的革新,而卡多佐的法官造法思想也就是在这样的理论背景和时代背景下产生的。我们在讨论卡多佐法官造法思想的前提是要给所造之“法”的范围要予以确定下来,很显然卡多佐所说的法是广义上的法,法的形式和内容也都是广义的,继而要对法律的性质进行说明。接下来的内容显得更为重要一些,要对卡多佐造法的基础即遵循先例、法官造法的限制以及法官造法的终极目标社会福利加以论述。法官造法的内容已经完整的呈现出来了,法官在面对个案的时候,就需要用到法官造法的方法,包括哲学的、历史的、习惯的和社会学的方法。卡多佐在重视理论研究的同时更重视实践当中的积累,无论是作为律师的卡多佐还是法官的卡多佐,都体现出了他注重社会的真正需求和实践,为他法官造法的思想提供了理论依据。在他的法律职业生涯之初就体现出了和其他律师不一样的特点,将法律问题与社会生活实际相联系,作为法官的卡多佐将法官造法的方法运用在了具体的个案面前,他司法意见书更是秉持了理性与正义。无论是对卡多佐人格魅力的折服还是对他为美国司法史所做出的贡献来说,卡多佐赢得了许多的赞许,当然了也会批判的声音。但是思想理论的研究都是开放的,不能闭门造车,只有对实践具有指导意义都是有益的。当前我国正处于司法改革的阶段,更应该放眼看世界,尽管我国与美国的法律体系相比较存在很大的不同,但是追求公平正义的精神都是相同的,可以相互吸收借鉴。
[Abstract]:Mr. Cardoso's idea of the law of the judge has always been concerned and studied by scholars at home and abroad, although he is not the first to put forward the idea of the law of the judge in the common law system, but the idea is recognized, and then can play an important role in the judicial reform of the United States, In the end of the 19th and the beginning of the 20th century, the United States was full of unknown challenges and possible, and Mr. Cardoso combined the pragmatic theory with the function of the judge, and played an important role in the reform of American justice. The idea of the law of the judge was the core of his thought. Cardoso's law of law is based on the tradition of American common law and the philosophy of American legal pragmatism. His ideas were influenced by the pragmatic jurist Homs, Gray, and the representative of the same age of social law. of course, the idea of the law of the judge of Cardoso did not escape the background of the time, and with the end of the industrial revolution and the adjustment of the social structure, the idea of people changed greatly, and these changes also led to the reform of the United States in the field of the administration of justice, And Cardoso's law of law is also under the background of the theory and the background of the background. It is clear that Cardoso's law is a broad law and the form and content of the law are broad, and then the nature of the law should be explained. The following content is more important, which is based on the precedent, the limitation of the law of the judge and the ultimate objective social welfare of the law of the judge. The content of the law of the judge has been fully presented. In the face of the case, the judge needs to use the method of the law of the judge, including the method of the philosophy, the history, the habit and the sociology. Cardoso paid more attention to the accumulation of the theory while paying more attention to the theoretical study, both as the lawyer's Cardoso or the judge's Cardoso, which reflected his emphasis on the real needs and the practice of the society, and provided the theoretical basis for his law-making. At the beginning of his legal career, he reflected the different characteristics of other lawyers, linking the legal issues with the reality of social life, and using the judge's method of making the law in front of the specific case, and his judicial opinions were the rational and the justice. Cardoso won a lot of praise, of course, for his contribution to Cardoso's charisma, and to his contribution to the history of American justice, of course. But the research of the theory of thought is open, it can't be closed to the car, only has the guiding significance to the practice. At present, our country is in the stage of judicial reform, more should see the world, although our country is quite different from the legal system of the United States, but the spirit of the pursuit of fairness and justice is the same, and can absorb and draw lessons from each other.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D909.1
[Abstract]:Mr. Cardoso's idea of the law of the judge has always been concerned and studied by scholars at home and abroad, although he is not the first to put forward the idea of the law of the judge in the common law system, but the idea is recognized, and then can play an important role in the judicial reform of the United States, In the end of the 19th and the beginning of the 20th century, the United States was full of unknown challenges and possible, and Mr. Cardoso combined the pragmatic theory with the function of the judge, and played an important role in the reform of American justice. The idea of the law of the judge was the core of his thought. Cardoso's law of law is based on the tradition of American common law and the philosophy of American legal pragmatism. His ideas were influenced by the pragmatic jurist Homs, Gray, and the representative of the same age of social law. of course, the idea of the law of the judge of Cardoso did not escape the background of the time, and with the end of the industrial revolution and the adjustment of the social structure, the idea of people changed greatly, and these changes also led to the reform of the United States in the field of the administration of justice, And Cardoso's law of law is also under the background of the theory and the background of the background. It is clear that Cardoso's law is a broad law and the form and content of the law are broad, and then the nature of the law should be explained. The following content is more important, which is based on the precedent, the limitation of the law of the judge and the ultimate objective social welfare of the law of the judge. The content of the law of the judge has been fully presented. In the face of the case, the judge needs to use the method of the law of the judge, including the method of the philosophy, the history, the habit and the sociology. Cardoso paid more attention to the accumulation of the theory while paying more attention to the theoretical study, both as the lawyer's Cardoso or the judge's Cardoso, which reflected his emphasis on the real needs and the practice of the society, and provided the theoretical basis for his law-making. At the beginning of his legal career, he reflected the different characteristics of other lawyers, linking the legal issues with the reality of social life, and using the judge's method of making the law in front of the specific case, and his judicial opinions were the rational and the justice. Cardoso won a lot of praise, of course, for his contribution to Cardoso's charisma, and to his contribution to the history of American justice, of course. But the research of the theory of thought is open, it can't be closed to the car, only has the guiding significance to the practice. At present, our country is in the stage of judicial reform, more should see the world, although our country is quite different from the legal system of the United States, but the spirit of the pursuit of fairness and justice is the same, and can absorb and draw lessons from each other.
【学位授予单位】：沈阳师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D909.1
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