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 a succession of distinguished patriots and cultural leaders.

The first of the Cardozos to gain prominence—though not honor—in judicial circles was Benjamin's father, who cast an unfortunate blight on the family name. Judge Albert Cardozo was a member of the infamous Tweed Ring in New York, where his conduct finally led to charges of malfeasance and corruption being filed against him; in order to escape impeachment he resigned. It has been remarked that much of Benjamin Cardozo's life was devoted to the atonement of his father's sins.

As a child Benjamin was taught by a tutor, Horatio Alger, who later became famous as the author of the most popular books for boys of the period, in all of which the hero triumphed over poverty and adversity by courage and hard work. Benjamin was a voracious reader of the Alger thrillers, and he credited his admittance to Columbia University at the early age of fifteen to the preparation for college received from Alger.

Cardozo's rise in the legal profession was rapid and brilliant. He served successively as a justice of the Supreme Court of New York, associate judge of the Court of Appeals, and finally as associate justice of the United States Supreme Court. Throughout his career his opinions, numbering some 470 in written form, are monuments of legal scholarship. Further, they are famous for literary style—in Santayana's words "clothed in a language that lends the message an intrinsic value, and makes it delightful to apprehend, apart from its importance in ultimate theory or practice."

Aside from the opinions, scattered through the New York Reports and United States Reports from 1914 to 1938, Cardozo's writings were not voluminous. Most widely known are four small books: The Nature of the Judicial Process, The Growth of the Law, The Paradoxes of Legal Science, and Law and Literature. It is generally agreed that the most original and significant of these works, the one exerting greatest influence on the legal profession and giving laymen the clearest insight into the workings of the law, is the first, The Nature of the Judicial Process (1921).

The extraordinary success of The Nature of the Judicial Process was due in part to the charm of the author's style, but more importantly to Cardozo's careful analysis of the factors, conscious and unconscious, which guide a judge in reaching his decisions. Previous to the appearance of this unique picture of the operations of the law, there was a widely prevailing belief that the legal process consisted primarily in drawing logical deductions from established precedents. Cardozo's interpretation showed that the matter was far more complex and by implication that the case method of teaching law has distinct limitations. As viewed by Cardozo, law is a living body of principles capable of growth and change.

"The work of deciding cases," states Cardozo, "goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth. Let some intelligent layman ask him to explain: he will not go very far before taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft." Such an answer is unsatisfying to Cardozo and no doubt to the inquirer.

Consequently, the author indulges in introspection, asking himself such searching questions as: "What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals?" All these varying considerations, Cardozo points out, may and should influence the judge's decisions. By "introspective searchings of the spirit" he seeks to weigh the "strange compound," to discover the relative significance of the ingredients which enter into the judicial process. It may be doubted, suggests Cardozo, whether judges ought to be allowed to brew such a compound at all; nevertheless, he says, "I take judge-made law as one of the existing realities of life.… Not a judge on the bench but has had a hand in the making."

The first question for which Cardozo seeks an answer is "Where does the judge find the law which he embodies in his judgment?" The rule that fits the case may be found in the Constitution or a statute. Even so, there may be gaps to fill, doubts and ambiguities to be cleared, hardships and wrongs to be mitigated or avoided. Thus arises the need for judicial interpretation. More troublesome is "the land of mystery where constitution and statute are silent, and the judge must look to the common law for the rule that fits the case." In these instances, the first step is to compare the pending case with precedents, for "in a system so highly developed as our own, precedents have so covered the ground that they fix the point of departure from which the labor of the judge begins."

If the judge relies entirely upon the Constitution, statutes, and precedents, however, no system of living law could be evolved, and judges of high courts do not view their function so narrowly. "It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins. He must then fashion law for the litigants before him. In fashioning it for them, he will be fashioning it for others."

The assumption is erroneous, Cardozo emphasizes, that law is unchangeable and everlasting. Nothing is stable or absolute, even principles. Decade by decade and century by century, law is being modified, with the result that "hardly a rule of today but may be matched by its opposite of yesterday." Most of the changes have been wrought by judges. Still, the search must go on for "the essential and the permanent" in the field of justice.

Four primary approaches, as applied to the judicial process, are analyzed in detail by Cardozo: (1) the method of philosophy or the rule of analogy; (2) the method of evolution or historical development; (3) the method of tradition or the customs of the community; and (4) the method of sociology or of justice, morals, and social welfare.

The first principle is based on logic, analogy, or resemblance of relations, a method which is useful in eliminating favoritism and chance, enabling the judge to reach decisions with "serene and impartial uniformity." Logical development of the law, Cardozo asserts, requires consistency: "If a group of cases involve the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am a plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Therefore, adherence to precedent must be the rule rather than the exception in courts of law.

On occasion, logical principles may conflict. As an illustration, Cardozo cites the case of a legatee who had murdered his testator. One principle would recognize that an estate must be disposed of in conformity with a legal will. Another principle is that civil courts may not add to the pains and penalties of crime. But superseding these two concepts is another principle, "its roots deeply fastened in universal sentiments of justice, the principle that no man should profit from his own inequity or take advantage of his own wrong." The court so held in deciding the case, motivated by a "compelling sentiment of justice" more powerful than the preservation and enforcement of legal rights of ownership.

Cardozo proceeds next to an examination of the historical method, or the method of evolution, as applied to law. Occasionally this approach is in conflict with the philosophical method, though more often "the effect of history is to make the path of logic clear." The law of the future should not necessarily consist of an "uninspired repetition of the present and the past," Cardozo insists, but "history, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future." The most striking example is the law of real property, wherein Cardozo holds "there can be no progress without history." The law of contract is full of history, as are "the powers and functions of an executor, the distinctions between larceny and embezzlement, the rules of venue and the jurisdiction over foreign trespass."

A third force, after history and philosophy, having a bearing upon the establishment of judicial principles, Cardozo notes, is custom. Here he quotes Blackstone, who concluded that there are three kinds of common law: "(1) General customs, which are the universal rule of the whole Kingdom, and form the Common Law, in its stricter and more usual signification. (2) Particular customs, which for the most part affect only the inhabitants of particular districts. (3) Certain particular laws, which by custom are adopted and used by some particular courts of pretty general and extensive jurisdiction." Cardozo is inclined to play down the influence of custom in the development of law, though it may be an important factor in shaping legislation. "It is, however," he remarks, "not so much in the making of new rules as in the application of old ones that the creative energy of custom most often manifests itself today. General standards of right and duty are established." In this sense custom becomes identified with "customary morality, the prevailing standard of right conduct, the mores of the time … Life casts the moulds of conduct, which will some day become fixed as law." Thus custom is gradually transformed by the people, or their representatives, into law.

From history, philosophy, and custom, Cardozo goes on to "the force which in our day and generation is becoming the greatest of them all, the power of social justice which finds its outlet and expression in the method of sociology." "Fundamentally," he insists, "the final cause of law is the welfare of society." Even though judges may not lightly set aside existing rules, they should not indulge in formalism for its own sake but rather interpret the rules as far as possible for the public good. "When the social needs demand one settlement rather than another," Cardozo declares, "there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of other and larger ends." This statement is an accurate reflection of the attitude of the United States Supreme Court in recent years, which Cardozo helped to shape.

Judges have greater flexibility and freedom of choice in dealing with constitutions than with statues, because "statutes are designed to meet the fugitive exigencies of the hour," while "a constitution states or ought to state not rules for the passing hour, but principles for an expanding future." Cardozo calls particular attention to the "great immunities" with which the Constitution surrounds the individual. How the immunities are to be defined frequently becomes a matter of judicial interpretation. Here, too, liberal views predominate among today's Supreme Court justices. As seen by Cardozo, it is the duty of the courts to examine statutes not in isolation or as abstract principles "but in the setting and the framework of present-day conditions, as revealed by the labors of economists and students of the social sciences in our own country and abroad."

The position of property under the law is clarified by Cardozo. He points out that "property, like liberty, though immune under the Constitution from destruction, is not immune from regulation essential for the common good. What that regulation shall be, every generation must work out for itself." Property has a social function to perform and legislation toward that end is an appropriate exercise of governmental power.

Altogether in the field of law, Cardozo observes, "the tendency today is in the direction of a growing liberalism. The new spirit has made its way gradually; and its progress, unnoticed step by step, is visible in retrospect as we look back upon the distance traversed. The old forms remain, but they are filled with a new content."

Summing up, Cardozo concludes:

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.

In a separate chapter, Cardozo deals with "the judge as a legislator." Therein he finds that "in countless litigations, the law is so clear that judges have no discretion." Their right to legislate becomes evident when there are gaps in the law, and rules and precedents must be established. Certain general precepts, however, must be adhered to, Cardozo observes:

The judge, even when he is free, is still not wholly free. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." Wide enough in all conscience is the field of discretion that remains.

The final chapter of The Nature of the Judicial Process is devoted in part to a discussion of the place of precedent in our legal system. While noting valid objections to a strict adherence to precedent, Cardozo still holds that the rule should generally prevail, varying only in exceptional cases. As a practical matter, he warns that "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." Cardozo points out that the rule of adherence to precedent is applied with less rigidity in the United States than in England. Also, "the United States Supreme Court and the highest courts of the several states overrule their own prior decisions when manifestly erroneous," as was done in 1954, for example, when the Supreme Court ruled segregation in public schools unconstitutional, thereby reversing its own "separate but equal" dictum of 1896.

A majority of the cases which come before the courts can reasonably be decided only one way, in Cardozo's opinion. A small percentage, however, are less clear-cut, and "these are the cases where the creative element in the judicial process finds its opportunity and power … where a decision one way or the other, will count for the future." It is in such instances that the judge assumes the role of a lawgiver. Looking back upon his own career, Cardozo recalls, "I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile… I have become reconciled to the uncertainty, because I have grown to see it as inevitable."

Cardozo concedes that the power placed in the hands of judges is great and subject to possible abuse. He quotes Ehrlich to the effect that "there is no guaranty of justice except the personality of the judge." Below the more or less tangible factors which influence judgments are subconscious forces far more difficult to appraise. As expressed by Cardozo, "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."

In conclusion, Cardozo cites with approval a statement by Theodore Roosevelt, "whose intuitions and perceptions were deep and brilliant," in the author's eyes: "The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, vested right, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making."

Benjamin Cardozo is most frequently bracketed with Oliver Wendell Holmes as the two pre-eminent American judges of the past fifty years. Cardozo's enduring reputation will doubtless be as an interpreter of the common law. In reviewing Selected Writings of Benjamin Nathan Cardozo, published posthumously, Newman Levy concluded that "no judge in our history, with the possible exception of Holmes, offered such a rare combination of legal erudition, judicial poise, and broad, humanistic culture." These qualities are demonstrated on every page of The Nature of the Judicial Process.