Cardozo, Benjamin Nathan
Benjamin Nathan Cardozo 1870-1938
American jurist, essayist, and nonfiction writer.
One of the leading legal theorists of the twentieth century, Cardozo served on the New York Court of Appeals for eighteen years prior to his appointment to the U.S. Supreme Court in 1932. Cardozo's tenure as a judge coincided with a period of ferment in American jurisprudence; rapidly changing social conditions, which generated a variety of new legal questions, and the widespread repudiation of the oracular theory of judging combined to provoke a controversy among members of the legal community over the role of the judiciary in the development of the law. Critics and biographers agree that Cardozo made a significant contribution to this debate in his legal opinions as well as in his extrajudicial writings, most notably The Nature of the Judicial Process, The Growth of the Law, and The Paradoxes of Legal Science, three books in which he outlined the freedoms and limitations of the judiciary in the process of legal growth and sought to develop a method of decision making that would bring public law into harmony with social need. The Nature of the Judicial Process, now considered a classic of judicial analysis, demystified the American court system with its frank description of how judges actually arrive at their decisions. In the later volumes, Cardozo refined his legal philosophy, continuing to focus on the dual responsibility of the judiciary to preserve continuity in the law and respond to change. Cardozo's extrajudicial writings have been consistently praised for their scholarship, candor, spirit of compromise, and liberality—qualities that also distinguished his service on the bench, making him one of the most admired and respected judges of his time. The success of Cardozo's books was also due in part to their distinction as literature. Convinced that style could not be separated from substance, Cardozo brought the judicial process to life in lucid, eloquent prose sprinkled with humor, anecdotes, and practical illustrations.
Born and raised in New York City, Cardozo was the youngest son of Rebecca Nathan Cardozo and Albert Jacob Cardozo. A descendant of a long line of Sephardic Jews who had gained social prominence in New York, Cardozo could trace his American ancestry to the seventeenth century. A few years after Cardozo's birth, his father, a state supreme court judge, was implicated in Tammany Hall corruption and resigned his position under threat of impeachment. According to biographers, Cardozo was so ashamed by his father's resignation that he made it a lifetime ambition to restore his family name. Both of Cardozo's parents died when he was still very young, his mother in 1879 and his father six years later. When he was only fifteen, Cardozo entered Columbia University. By the time he was twenty, he had earned bachelor's and master's degrees and was attending Columbia Law School. Cardozo practiced law in New York from 1891 until 1913, when he was elected a judge of the New York Supreme Court. Six weeks after the election, he received a temporary appointment to the New York Court of Appeals. Elected to the court for a full fourteen-year term in the autumn of 1917, Cardozo served as its chief judge from 1927 until 1932. It was during his tenure on the New York Court of Appeals that Cardozo first gained a reputation for successfully applying existing legal principles to changing social conditions. He joined a number of other legal scholars in pressing for judicial reform, arguing that the American judiciary was hindering social development by interpreting past laws and precedents too strictly. His opinions, which reflected his belief that judicial decisions should be based on the underlying purpose of the rule in question, rather than on its exact wording, influenced the trend in U.S. appellate judging toward increased involvement in shaping public policy. Cardozo's fame as a legal scholar was further enhanced by his extrajudicial publications, all but one of which appeared during the time he was sitting on New York's highest court. When Oliver Wendell Holmes retired from the U.S. Supreme Court in 1932, Cardozo—the chief judge of the leading state court in the country and the author of several important books on the judicial process—was appointed by President Herbert Hoover to succeed him. His service on the Court was cut short by his death on July 9, 1938, following complications from a heart attack and a stroke. As an associate justice of the Supreme Court, Cardozo generally sided with liberals Louis Brandeis and Harlan Fiske Stone in supporting President Franklin Roosevelt's controversial New Deal measures, which were opposed by the Court majority for much of Cardozo's term of service. By 1936, however, the balance on the Court had shifted, and Cardozo's innovative approach to lawmaking was met with less resistance.
The Nature of the Judicial Process, which consists of a course of lectures Cardozo delivered at Yale University, is generally considered his most original and influential book. In this work, Cardozo described the many various factors that influence the decisions of judges, revealing the judicial function to be a much more complicated process than merely applying existing rules to the facts of any given case or drawing logical deductions from established precedents. While acknowledging that judges are most often confronted with cases in which the law is so clear that only one outcome is feasible, Cardozo emphasized that there are "exceptional" cases requiring greater judicial discretion—those in which the law is anachronistic or its strict application would be illogical given current conditions and those in which gaps in the law exist. Cardozo was most interested in the exceptional cases, which gave judges an opportunity to exercise their "creative function." However, he was also aware of the dangers of unchecked judicial power. He called upon judges to make a conscious effort to avoid allowing personal feelings to inform their decisions, and he outlined alternative methods of decision making that he believed would preserve the continuity of the law while at the same time allow for legal growth. Summarizing his philosophy, Cardozo stated, "My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent." Cardozo elaborated on these ideas in The Growth of the Law, a second course of lectures he delivered at Yale, and The Paradoxes of Legal Science, a series of lectures he gave at Columbia. The Growth of the Law is primarily concerned with the question of how to choose the most appropriate method of decision making in any given case, and The Paradoxes of Legal Science focuses on the problem of reconciling the conflicting demands for stability and progress in the law. To a lesser extent these issues are also discussed in Law and Literature, and Other Essays and Addresses, a collection most known for its title essay, in which Cardozo identifies and illustrates six different prose styles used in judicial decisions.
It is generally agreed that Cardozo's enduring reputation will rest on his contribution to the modernization of legal principles. Through his progressive interpretation of the law, and of the judicial function itself, Cardozo helped to make public policy more responsive to changing social values and interests. Renowned for his legal erudition, cultured outlook, and literary style, he is also widely praised for his openmindedness and impartiality. While not all legal scholars have agreed with his analysis of the judicial process, none have denied the spirit of compromise with which he undertook his investigation.
The Jurisdiction of the Court of Appeals of the State of New York (nonfiction) 1903; revised edition, 1909
The Nature of the Judicial Process (lectures) 1921
The Growth of the Law (lectures) 1924
The Paradoxes of Legal Science (lectures) 1928
What Medicine Can Do for Law (lecture) 1930
Law and Literature, and Other Essays and Addresses (essays and lectures) 1931
Law Is Justice: Notable Opinions of Mr. Justice Cardozo (nonfiction) 1938
Selected Writings of Benjamin Nathan Cardozo (lectures and essays) 1947
(The entire section is 72 words.)
SOURCE: "The Behavior of Judges," in The Nation (New York), Vol. CXIV, No. 2959, March 22, 1922, pp. 347-48.
[In the following essay on The Nature of the Judicial Process, Powell comments on Cardozo's belief that judges too often allow personal feelings and experience to inform their decisions.]
Those who brought the Tables of Stone from Mount Sinai were not the last to thrust the lawgiver behind the mask of myth or of abstract formula. Unthinkers still assure us that ours is a government of laws and not of men, rejecting as unholy the emendation that it is a government of lawyers and not of men. Judges, they say, do but passively apply what the law in its wisdom reveals to them—or to five out of nine of them. Yet there have long been skeptics. Two hundred and four years ago Bishop Hoadley dared to say that "whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, and not the person who first wrote or spoke them"; and Lord Bramwell later revealed that "one-third of a judge is a common juror if you get beneath the ermine"; to which Mr. Justice Riddell adds that "the other two-thirds may not be far different." Mr. Justice Holmes eschews fractions for biology and physics. Forty years ago he told us that "the life of the law has not been logic: it has been experience." Recently in viewing the development of a single cell he has said: "I...
(The entire section is 1314 words.)
SOURCE: A review of The Nature of the Judicial Process, in American Political Science Review, Vol. XVI, No. 4, November, 1922, pp. 710-11.
[In the following essay on The Nature of the Judicial Process, Dodd focuses on Cardozo's explanation of the various factors that influence the decisions of appellate courts.]
Seldom in a similar space will a student of legal institutions find so much of interest as in these lectures of Judge Cardozo [The Nature of the Judicial Process]. With a wealth of knowledge and a felicity of practical illustration the author outlines the influences which actually mould the judgments of appellate courts. He draws aside the veil of judicial sanctity, and shows that judges have their views determined by all the influences which control their judgment as men and as lawyers. The author's point of view is illustrated by the following quotation: "Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.… There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in a refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of the conception which lifts them...
(The entire section is 564 words.)
SOURCE: A review of The Growth of the Law, in Political Science Quarterly, Vol. XL, No. 3, September, 1925, pp. 479-80.
[In the following essay, Hart praises The Growth of the Law for both its readable style and its scholarly insight.]
Judge Cardozo, of the New York Court of Appeals, has given us another book [The Growth of the Law] which fully comes up to the expectations of those who were fortunate enough to read his earlier lectures at Yale [The Nature of the Judicial Process]. Lucid in style, eclectic in philosophy, well balanced in point of view, this work is the contribution of a true scholar who sees the judicial process steadily and sees it whole. It carries further the analysis of the function of adjudication which the former volume so brilliantly began. Its phrases are pithy and shot through with imagination tempered by insight. There is a distinct touch of the artist coupled with the incisiveness of the trained thinker, the saneness of the man of affairs coupled with the sympathy of the humanist. When the author paraphrases Hamlet's famous epigram in his speech to the players, it is with appositeness but without vulgar show of learning. He assumes in the reader culture equal to his own, and leaves him to realize for himself that a judge may know his Shakespeare. The same is true of his other literary allusions.
It will be interesting to compare...
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SOURCE: "About Books, More or Less: Courts and Crowds," in The New York Times Book Review, May 27, 1928, p. 4.
[In the following essay on The Paradoxes of Legal Science, Strunsky discusses Cardozo's ideas about the creative function of the judicial process in terms of the American voting public's behavior and sentiments.]
The presiding Judge of our New York State Court of Appeals confesses to the higher discontent which every good man brings to the practice of his profession. Judge Cardozo is not proof against the familiar belief that the grass in his neighbor's field is greener and the air on the other side of the creek is much more bracing. Why, he asks in The Paradoxes of Legal Science cannot I employ my rules of law with the same precision and certainty of results as the engineer with his logarithms and his stress and strain indexes? Why cannot I produce a "formula of justice" instead of having to deal with approximations obtained by rule-of-thumb? As a matter of fact, Judge Cardozo knows why he cannot, and his little book is a statement of the reasons why. But since he is an artist in his calling. I take it that any amount of good practical argument will not explain away the longing for perfection. Absolute beauty, absolute justice, absolute truth—the artist and the Judge and the scientist will take himself by the coat sleeve and show why the thing cannot be done; and he will...
(The entire section is 2068 words.)
SOURCE: A review of The Paradoxes of Legal Science, in American Political Science Review, Vol. XXIII, No. 1, February, 1929, pp. 200-2.
[In the following essay on The Paradoxes of Legal Science, Dickinson explores Cardozo's theory that the goal of the judicial process is to reconcile opposing considerations, particularly stability and progress.]
It may be not too much to predict that as the account now stands the chief American contributions to literature and the progress of human thought will prove to have been made in the field of jurisprudence. The writings of Holmes, Cardozo, and Pound have presented the results of a deeper probing into the operation of the legal system than had been before attempted by men bred to the common law, and have presented those results in most instances with a vividness and rare literary charm which are usually alien to the field of abstract speculation. Mr. Chief Justice Cardozo's latest volume [The Paradoxes of Legul Science] consisting of a course of lectures delivered in 1927 on the Carpentier Foundation at Columbia University, adds another item to the anthology of distinguished American contributions to juristic theory.
As the title of the book indicates, the central problem which engages the attention of the Chief Justice is suggested by his observation that the task of the law is to solve antinomies. "The reconciliation of the...
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SOURCE: "Introductory," in Mr. Justice Cardozo: A Liberal Mind in Action, Yorktown Press, 1935, pp. 7-20.
[In the following excerpt from his full-length study of Cardozo's legal opinions, Pollard provides an overview of Cardozo's career and legal philosophy.]
A gentle, modest man sits on the extreme left of the Chief Justice of the United States. As he listens intently to the arguments of counsel, he radiates an atmosphere of benevolence and wisdom. Everyone in the austere courtroom, judges and lawyers alike, pay him the homage of warm good-will and admiration bordering on awe. Confidence in the just decision dispels doubt. It is a feeling which could only be directed toward a man whose great talents in the law had been heralded far and wide before his accession to the high tribunal. Liberals and conservatives both see something to applaud in the record and attainments of Mr. Justice Cardozo: for humanity and honor and fair play, woven into the law through the loom of a prodigious learning, an understanding of modern human needs, and a vivid and striking power of expression, leave their mark even upon lawyers who are primarily concerned with furthering a client's dubious wants.
The American judiciary has seldom been graced with the presence of a man who combines the talents of philosopher, poet, and lawyer. Lawyers, by their very training, tend to emphasize precedent and glorify the...
(The entire section is 4883 words.)
SOURCE: "Three Great Judges: Holmes, Brandeis, Cardozo," in The Faith of a Liberal, Transaction Publishers, 1993, pp. 20-45.
[In the following excerpt, Cohen praises Cardozo as an inspirational force whose humanitarian philosophy, sensitivity to conflicting interests, and adaptation to changing social conditions profoundly influenced the legal profession. Cohen's commentary on Cardozo was originally published in National Guild Quarterly in 1938.]
A man's philosophy, his view of life, grows out of his own experience at the same time that it reveals his work.
Perhaps the most significant fact about Justice Cardozo's career is the way in which he achieved the almost unanimous reverence and affection of the whole nation. Extreme conservatives as well as the most advanced liberals urged his appointment to the Supreme Court for the vacancy occasioned by the retirement of Justice Holmes. Surely it is significant to ask how Benjamin Cardozo came to have this hold upon our thoughts and our imaginations. And it is heartening to reflect that there is only one explanation possible, and that is in terms of the sheer merit of his service to society. Benjamin Cardozo had no political connections or group pressure to back him. He had risen by sheer individual merit to the highest position in the judicial system of the Empire State and had set an example of what a great judge can do, not only in...
(The entire section is 2247 words.)
SOURCE: "Cardozo and the Upper-Court Myth," in Law and Contemporary Problems, Vol. 13, No. 2, Spring, 1948, pp. 369-90.
[Frank was an American jurist who served on the U.S. Court of Appeals for the Second Circuit from 1941 until 1957. In the following excerpt from a review of Selected Writings of Benjamin Nathan Cardozo, Frank faults Cardozo's description of the judicial process because it ignores the operations of trial courts.]
The practical is disagreeable, a mean and stony soil, but from that all valuable theory comes.
[Oliver Wendell Holmes, Holmes: His Book Notices and Uncollected Letters and Papers]
[The] first step toward improvement is to look the facts in the face.
[Holmes, Rational Basis of Legal Institutions]
There has recently been published a volume, Selected Writings of Benjamin N. Cardozo, which every thoughtful lawyer and judge will want ready at hand. It will repay constant re-reading. It includes nearly all Cardozo's extra-judicial writings, notably The Nature of the Judicial Process, first published in 1921, and The Growth of the Law, first published in 1924. In these two books, one of our most eminent appellate judges set forth his legal philosophy. More important, he showed...
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SOURCE: "Legal Mind at Work: Benjamin N. Cardozo's The Nature of the Judicial Process," in Books That Changed America, Macmillan Co., 1970, pp. 207-15.
[In the following essay, Downs examines Cardozo's legal philosophy as outlined in The Nature of the Judicial Process, focusing on Cardozo's analysis of the primary forces that influence the establishment of judicial principles.]
Benjamin Cardozo was rated by Roscoe Pound, an eminent legal scholar himself, as one of the ten greatest judges produced by the American bench. The names included in the illustrious line, beginning with John Marshall, shared certain common characteristics, according to Pound: "First of all, they were great lawyers, masters of their craft, masters of the authoritative materials in which judges in the English-speaking world are expected, as a duty of their office, to find the grounds of decision, and masters of the technique of applying those materials to the decision of cases."
Cardozo's American ancestry antedates by well over a century the beginnings of the nation. Forebears on his mother's side came from Portugal to America in 1654. His paternal ancestors left the Spanish peninsula during the expulsion of the Jews in the sixteenth century, migrating first to Holland and then to England. The founder of the American line came to the Colonies about 1752. For the next two centuries the family produced...
(The entire section is 3180 words.)
SOURCE: "The Styles of Mr. Justice Cardozo," in Life, Law and Letters: Essays and Sketches, Houghton Mifflin Co., 1979, pp. 47-58.
[In the following essay, Auchincloss praises Cardozo's writings for their literary qualities, using examples from his legal opinions to illustrate his various methods of decision making and his different prose styles.]
When I went to the University of Virginia Law School in the fall of 1938, I was determined to turn my back forever on the world of letters. I had failed—I had decided grimly—because my first novel, written during my junior year at Yale, had been rejected by Scribner's. It was thus ordained, I reasoned with the violence of youth, that I should never qualify for the exotic world of art and must resign myself to a more mundane profession. Although I thought I had been humbled, there was still a note of then unconscious condescension in the attitude with which I approached my new trade. It was, in the murky depths of my deepest reflections, a second best. The world of law might have seemed to me a more "real" world—a world, to put it crudely, more fit for men, "real" men (whatever they were)—but it was still, to my naiveté, inferior to the one to which I had, however rashly, aspired.
I was in for some pleasant surprises. I soon found that the history of English jurisprudence and the growth of the common law was quite as interesting as...
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Berlach, Harris. A review of Selected Writings of Benjamin Nathan Cardozo. Jewish Social Studies XI (1949): 86-9.
Credits Cardozo with demystifying the judicial process.
Frankfurter, Felix. "Benjamin Nathan Cardozo." In Of Law and Life & Other Things That Matter: Papers and Addresses of Felix Frankfurter, 1956-1963, edited by Philip B. Kurland, pp. 185-90. Cambridge, Mass.: Belknap Press, 1965.
Biographical sketch praising Cardozo as one of very few Supreme Court justices who have had a lasting influence on the development of the American legal system. Frankfurter served as an associate justice of the Court from 1939 until 1962.
Graves, W. Brooke. A review of Law and Literature and Other Essays and Addresses, by Benjamin Nathan Cardozo. Social Science 7, No. 4 (October 1932): 436.
Describes the contents of Law and Literature and recommends the book to young people seeking information on the legal profession.
Hall, Arnold Bennett. A review of The Growth of the Law, by Benjamin Nathan Cardozo. Social Forces IV, Nos. 1-4 (November 1925-September 1926): 202-4.
Finds that in The Growth of the Law Cardozo takes a balanced, "scientific" approach to the contemporary controversy over the judiciary's freedom to participate in legal development....
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