Benjamin Nathan Cardozo Critical Essays


(Twentieth-Century Literary Criticism)

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.

Biographical Information

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.

Major Works

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.

Critical Reception

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.