The Nature of the Judicial Process

Benjamin N. Cardozo

• Publisher: Dover Publications
• Year: 2012
• Print ISBN: 9780486443867
• eBook ISBN: 9780486165547
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A distinguished jurist provides insights into the judicial role by asking and answering the question, "What is it that I do when I decide a case?" In this legal classic, Benjamin N. Cardozo — an Associate Supreme Court Justice of the United States from 1932-38 — explains a judge's conscious and unconscious decision-making processes.
Cardozo handed down opinions that stressed the necessity for the law to adapt to the realities and needs of contemporary life. Famous for his convincing and lucid prose, he offers insights that remain relevant to a modern view of American jurisprudence. In simple, understandable language, he discusses the ways that rulings are guided and shaped by information, precedent and custom, and standards of justice and morals.
Four of Cardozo's lectures appear here, bookended by an introduction and conclusion. They explore a variety of approaches to the judicial process: the method of philosophy; the methods of history, tradition, and sociology; the method of sociology and the judge as a legislator; and adherence to precedent and the subconscious element in the judicial process. Ideal for law students as well as anyone interested in legal theory, this volume offers a rare look inside the mind of a great jurist.

CONCLUSION

The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. Little by little the old doctrine is undermined. Often the encroachments are so gradual that their significance is at first obscured. Finally we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew. The process, with all its silent yet inevitable power, has been described by Mr. Henderson with singular felicity:²²² “When an adherent of a systematic faith is brought continuously in touch with influences and exposed to desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing store of hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom emerging clearly into consciousness. In the meantime the formulas of the old faith are retained and repeated by force of habit, until one day the realization comes that conduct and sympathies and fundamental desires have become so inconsistent with the logical framework that it must be discarded. Then begins the task of building up and rationalizing a new faith.”

Ever in the making, as law develops through the centuries, is this new faith which silently and steadily effaces our mistakes and eccentricities I sometimes think that we worry ourselves overmuch about the enduring consequences of our errors. They may work a little confusion for a time. In the end, they will be modified or corrected or their teachings ignored. The future takes care of such things. In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.

The future, gentlemen, is yours. We have been called to do our parts in an ageless process. Long after I am dead and gone, and my little part in it is forgotten, you will be here to do your share, and to carry the torch forward. I know that the flame will burn bright while the torch is in your keeping.

1

Cf. N. M. Butler, “Philosophy,” pp. 18, 43.

2

“Human Nature in Politics,” p. 138.

3

Sec. 370, p. 165.

4

Cf. Pound, “Courts and Legislation,” 9 Modern Legal Philosophy Series, p. 226.

5

“Die Kunst der Rechtsanwendung,” p. 72.

6

“Science of Legal Method,” 9 Modern Legal Philosophy Series, pp. 4, 45, 65, 72, 124, 130, 159.

7

Gény, “Méthode d’Interprétation et Sources en droit privé positif,” vol. II, p. 180, sec. 176, ed. 1919; transl. 9 Modern Legal Philosophy Series, p. 45.

8

P. 65, supra; “Freie Rechtsfindung und freie Rechtswissenschaft,” 9 Modern Legal Philosophy Series.

9

Cf. Gnaeus Flavius (Kantorowicz), “Der Kampf um Rechtswissenschaft,” p. 48: “Von der Kultur des Richters hangt im letzten Grunde aller Fortschritt der Rechtsent-wicklung ab.”

10

Gray, “Nature and Sources of the Law,” sec. 395; Muirhead, “Roman Law,” pp. 399, 400.

11

Introduction to Gierke’s “Political Theories of the Middle Age,” p. viii.

12

Saleilles, “De la Personnalité Juridique,” p. 45; Ehrlich, “Grundlegung der Soziologie des Rechts,” pp. 34, 35; Pound, “Proceedings of American Bar Assn. 1919,” p. 455.

13

“Essay on Judicature.”

14

Redlich, “The Case Method in American Law Schools,” Bulletin No. 8, Carnegie Foundation, p. 37.

15

McDougall, “Social Psychology,” p. 354; J. C. Gray, “Judicial Precedents,” 9 Harvard L. R. 27.

16

Munroe Smith, “Jurisprudence,” Columbia University

17

Cooley, “Torts,” 1st ed., p. 93; Pollock, “Torts,” 10th ed., p. 21.

18

Phelps v. Nowlen, 72 N. Y. 39; Rideout v. Knox, 148 Mass. 368.

19

Lamb v. Cheney, 227 N. Y. 418; Aikens v. Wisconsin, 195 U. S. 194, 204; Pollock, “Torts,” supra.

20

Arnold, “Essays in Criticism,” second series,...

Table of contents

• Title Page
• Copyright Page
• Table of Contents
• Lecture I. - Introduction. The Method of Philosophy.
• Lecture II. - The Methods of History, Tradition and Sociology
• Lecture III. - The Method of Sociology. The Judge as a Legislator
• Lecture IV. - Adherence to Precedent. The Subconscious Element in the Judicial Process. Conclusion.
• CONCLUSION