On Judicial Pragmatism

Pragmatism as a native philosophy, its emergence, development anddissemination has a profound social and cultural background. Although pragmatism isnot the only American school of thought, philosophy is accepted by most Americans,but most Americans pragmatism as the most suitable for them, the life of the mostinfluential philosophical thought to them. Pragmatism has penetrated into every aspectof American society. Pragmatism in legal theory and judicial practice in the UnitedStates has an important influence. Legal pragmatism provides a practical concept forjudicial judgment and experience judgment of the path. This, to some extent make upfor the defects of traditional judicial judgment of excessive dependence on form, alsoreduce the stress of the judge strict laws. Pragmatic concept of trial asked a judge tosentence on the basis of the results may lead to rather than absolute in accordancewith the regulations formulated by the decide the content of the referee. To a greatextent reduced the sentence rhetoric, to enhance the acceptability judgment. Based onlegal pragmatism philosophy as the research basis points, respectively, the outline ofthe American legal pragmatism and judicial pragmatic vision of contemporary China,points out the two existing differences and inner reasons for these differences, andanalyzes some similar to pragmatism theory, points out that the special pragmaticvalue, and then focus on analysis of the contemporary Chinese legal pragmatism ideasexist in the concrete judicial judgment of value, and how to effectively develop thefunction of legal pragmatism, analysis of legal pragmatism with Chinesecharacteristics, and finally in the article points out that the contemporary Chineselegal pragmatism and some dominant problems in judicatory pragmatism philosophyunder the guidance of the judicial function. This paper argues that the contemporaryChinese legal pragmatism is has many connections with the American legalpragmatism, have in common in theoretical level, but in the concrete operation use,contemporary Chinese legal pragmatism focuses more on the social effect of the guide, with the experience and process oriented legal pragmatism is has a significantdifference. Therefore, in the process of research on contemporary Chinese legalpragmatism, should be based on contemporary China’s judicial environment andconditions, jump out the category of the American legal pragmatism, to look at legalpragmatism with contemporary Chinese characteristics.There are eight chapters in this dissertation Chapter1is the introduction, andChapter7is the conclusion. Other five chapters are the followings:Chapter2discusses the judicial situation of pragmatism in the American legalpragmatism and the contemporary Chinese legal pragmatism, respectively do adetailed picture of the outline, the pragmatism that Outlines the general situation ofthe two, using comparative analysis method to extract the essence of these two kindsof pragmatic differences, for the article at the back part of the detailing of thecontemporary Chinese legal pragmatism characteristics to do a good job offoreshadowing. Because in my opinion, the American legal pragmatism and thecontemporary Chinese legal pragmatism, although in the existing translationterminology, expressed in the same way, but there are differences in nature, theAmerican legal pragmatism, focusing on the process and experience of elegant,contemporary China’s judicial pragmatism more focus on the effect of the measure,this is two different judicial path, while using the same kind of the guidance of theconcept, but due to differences in national conditions, the legal system, legalenvironment, will inevitably appear the homogeneity of different results. Therefore,the author thinks that the study of current Chinese legal pragmatism in the process,must be selected "pragmatism" and "pragmatism", clear two pragmatism has justappeared on the agree, exists in use process is separate, not general think utilitarianpragmatism in contemporary China and the United States is the same.Chapter3discusses the pragmatism in theory to make a clear definition ofpragmatism is the earliest philosophical concepts, as the legal subject graduallyperfect, the research on legal pragmatism and Russia and raises legal pragmatismgradually began as a concept to guide the operation of the judicial process.Pragmatism theory is on the basis of widely absorbing other theory graduallydeveloped, therefore, on the philosophy of pragmatism and utilitarianism, realism,consequences and postmodernism have close connection and similarities, so it issometimes hard to clear to draw clear boundaries between these theories. Butpragmatism also has its own characteristics and other what theory does not have the discipline superiority, so it is necessary to the theory of pragmatism and other similarcomparative analysis, so as to achieve more explicit recognition of pragmaticcharacteristics. And, of course, this article also impossible can be implementedthrough the analysis of the definition of similarity theory, this is not realistic, but alsouseless, because no one theory may be isolated, must link and other theories. Thisarticle is trying to through the comparison and analysis of the theory in this chapter,pointed out that judicial pragmatic value and legitimacy of legal pragmatism can, as akind of concept to guide the judicial referee is has its unique value and legitimacy.Chapter5discusses the practical judicial ideas of some basic principles, thereferee skills and specific paths in the judicial process analysis are summarized.Pragmatic judicial trial principle, as the paper notes, with consistency in nature. Basedon the overview of posner about legal pragmatism on the basis of the principle ofcombining with China’s specific legal situation, choose the three most can representthe principle of legal pragmatism skill, the interests of the measure principle, theprinciple of reasonable, consultative judicial principle is analyzed. Will, of course, Ialso know that pragmatism all oriented generalization to the principle of justice, isalso unlikely, this also with the pragmatic analysis of light conclusion runs counter tothe idea. After analyzed the judicial pragmatic principle, the article then specificreferees for judicial pragmatic skills and judicial path in the process of doing a briefelaboration.Chapter6discusses on the basis of above analysis, the contemporary judicialpragmatic were briefly reviewed in this description, with Chinese characteristics incontemporary judicial pragmatism philosophy under the guidance of China’s judicialreferee model gives a detailed analysis, and then to contemporary Chinese legalpragmatism to make a global, especially it should be pointed out that thecontemporary Chinese legal pragmatism existing problems of some dominant, toexplore the pragmatism of judicature in our country is in the true sense of the judicialpragmatism, contemporary China’s judicial judicial pragmatic difference betweenpragmatism and the United States, and why can produce such a big difference. Andpoints out that although we contemporary judicial pragmatism is not perfect, there aremany problems, but the pragmatism of judicial philosophy did to a great extent, tomaintain the social stability of our country, also to achieve a higher degree of judicialjustice in the future laid a solid foundation. Under the guidance of the socialistconcept of rule of law, give full play to the pragmatism of judicial philosophy will be more help towards social justice response type, because, in contemporary China,judicial needed to do is to face inherent in the legal tradition and creative use ofpositive factors, efforts through its own perfect, in the society under the backgroundof highly anticipated, using judicial judgment skills that are in accordance with thetime requirements, to win the recognition and respect of society, realize the judicialsafeguard social order and promote social harmony.