The Growth of Law (The Paradox of Legal Science)

Author: Benjamin N. Cardozo, translated by Dong Jiong and Peng Bing
Publisher:
Publish Date: 2002-10-01
Features: In essence, justice is a more subtle and ambiguous concept than merely adhering to rules. After all efforts, to some extent, it remains only a desire, an exciting attitude, and a longing for the good. Stammler said in a recent article, "Justice, according to the conception of a perfect society, points the way for a particular legal will." We might even find that when discussing justice, the qualities it reflects in our minds are benevolence, although this quality often conflicts with others. ② If the components of justice are kept separately, they may sour; but if they are mixed together, not only do their characteristics remain unchanged, but they become even sweeter. You can propose your own desired recipe. People with trained taste will judge it as a whole, accepting or rejecting it. The rules that emerge from this mixture may not be very useful unless this ever-creating process proves to have a promising future. "You should not deviate from the norms established by history or logic for the sake of convenience or such petty gains, for what you lose will far outweigh what you gain. You should not allow the norms of equity and justice to be tarnished for the sake of symmetry or order, which are trivial matters, for then you will lose more than you gain." Such principles are well known to all. We should still recognize that the seemingly dry and ambiguous precepts have unexpected meanings and hidden vitality, which can only be revealed to the devout—the ones who seek absolute truth and do their best to follow and obey them. Between the poles, there is still space to be fully utilized. The radiating forces from the poles will affect all these adjustments, causing them to fluctuate. When new problems arise, equity and justice will guide our thoughts to find solutions. Upon careful examination of these solutions, people will find that they conform to symmetry and order, and even become a starting point for a new symmetry and order. Then, logical and historical methods, including the countless methods of the ancestors' intellectual creation, will inspire new paths to achieve equity and justice. We can find similar phenomena in literary works such as poetry and prose. People seek appropriate words and pleasing language to express their thoughts, but when they find such language, they also reshape their thoughts to some extent. Our constraints also contain liberation. The limitations of meter and rhyme, the urgency of time or balance, sometimes liberate the thoughts they constrain—a liberation in confinement. Of course, in fact, in the process of legal development, as well as in the development of other intellectual fields, we can never free ourselves from relying on intuition or sudden insights, which transcend and transform the influence of pure experience on us. Windelband said, "Great historians need not wait for the research and experimental results of psychologists. They use the psychology of everyday life. It combines human knowledge, life experience, and the psychology of ordinary people with the insights of geniuses and poets. However, no one has yet succeeded in turning this psychology of intuitive judgment into a science." ① These words are not only true for historians but also for legal workers. Graham Wallace