[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 be convinced, and he will go on to say to himself, "Yes, but why not? why not?"

In the title of the book is the answer to the nagging question. The paradoxes of legal science are implicit in the fact that the business of justice is with the paradoxes of life. The goal of juridical effort, one legal philosopher has said, is not logical perfection but compromise. What justice has been set to do, in Judge Cardozo's own summary, is to harmonize stability with progress, liberty with equality, liberty and equality with order, property rights with public welfare. How can there be a perfect formula of compromise other than that the terms of the compromise shall be observed by both parties? The parallel with the engineer's bridge, built on mathematical formulae and between two fixed points, is not a perfect one. Closer would be the comparison with the navigator's bridge, and on a ship not confined to plowing between Ambrose Channel and Cherbourg but bound for a continually shifting destination. There are rules of ship construction and there are laws of navigation. but there must always be a man on watch to compromise with emergency and with changing circumstance. When the disgruntled suitor at law repairs to the tavern and curses out the Court and remarks that the Judge can always twist the law to the Judge's own mind, he is speaking very handsomely of the man on the bench. In order to practice compromise in a changing and exceedingly complicated world the law must be always "twisted." An honest twisting of the law to the facts of life is justice.

In this statement, which I trust has not drifted into libel, lies the impossibility of the perfect formula of justice. Judge Cardozo finds that the longing for an absolute standard and guide besets the jurist hardest when the "judicial function is dynamic or creative." Diligence and memory and normal reasoning powers are sufficient to cope with a static situation, when it is a case of applying well-known rules to identical or almost identical situations. But it is precisely against the static conception of justice that the present volume is a protest. Directly or indirectly it is a plea for the creative operation of justice, for the Judge who is not content to stand by the decided things and leave it to the Legislatures to enact progress:

We are told at times that change must be the work of statute, and that the function of the judicial process is one of conservation merely. But this is historically untrue, and were it true it would be unfortunate. Violent breaks with the past must come, indeed, from legislation, but manifold are the occasions when advance or retrogression is within the competence of Judges as their competence of Judges as their competence has been determined by practice and tradition.

Practice and tradition. There is nothing new, Judge Cardozo points out in another place, in this notion of established legal concepts bending to expediency and justice, to the shifting of the mores, to change in economic facts and relations. But what he does think is new is a present readiness on the part of Judges to "avow what they have always practiced." This I interpret to mean that not so long ago a Judge confronted by a new situation would do the right thing and pretend that the case was on all fours with Snooks v. Stokes in the seventh year of Richard II. Today the Judge is not afraid, or is growing not to be afraid, to hand down his decision because it is the right thing to do in the year 1928, and because Richard II has been dead for some time.

To what extent in the history of the law Judges have been creative and dynamic would make an interesting tale for the layman. Judge Cardozo admits that violent breaks with the past must be the work of Legislatures. But there must be instances when Judges have been ahead of the Legislatures; when laws rendered obsolete by economic evolution or rendered oppressive and cruel by a higher social ethic have been allowed to stick in the statute books by indifferent or irreconcilable Legislatures and have been mitigated by the Judges. On the whole, I take it, Judge Cardozo would not have the judicial process go in for dynamic creation ahead of the times; and that would leave some comfort for those of us—there are a great many—who are not found of lawyers and Judges. Granted, we say, that the Judge does finally bring himself to the point of admitting that the earth turns around the sun instead of the other way about; that labor unions are not conspiracies but legitimate organs of workers' self-defense; that women and children in industry need protection; that the public interest requires the restriction of private property rights in the form of zoning laws. What of it? There is not much credit in yielding to a fait accompli. saying yes to what the facts have long been asserting, refraining from the thesis that the sun do move.

Zoning laws, just referred to, would be an instance; I have taken it from Judge Cardozo's book:

I have little doubt that a generation ago they would have been thrown out by the courts as illegitimate encroachments upon that freedom of use which is the attribute of property. I venture to express some doubt as to the fate they would have suffered even in our own day if they had come before the Supreme Court while they were yet novelties in legislation. The fact is, however, that by the time they were subjected to that challenge they were in successful operation far and wide throughout the land. The test of experience had proved them to be forces that made for conservation rather than destruction.

The sturdy critic of court and Judges would thus maintain that the judicial process is like the pre-Volstead saloonkeeper who instructed the barkeeper that Riley's credit was good for a drink if Riley had already had the drink. In the popular mind, I am afraid, the belief is still general that when Judges move they do so because they prefer to go along—at a distance—instead of being hauled. That is why an authoritative story of Judges who have gone along instead of being hauled or pushed would be educative. I don't imagine that a case can ever be made out for Judges as revolutionaries. Jurists may resent being described as a drag upon progress, but will never be averse to being described as a brake. Yet the distinction is worth keeping in mind.

In one respect—and here we are far away from Judge Cardozo's text—I do think that critics of our American courts have been harsh to the point of being unfair; and that is in protest against our celebrated divided court decisions, often in the mystic ratio of five Judges to four. I think such criticism unfair, in a minor fashion. because I have rarely come across protests by labor against a 5 to 4 decision at Washington in favor of labor, or protests by friends of free speech against similar narrow squeaks in their favor. But that, I presume, would be only human The major difficulty about critics of the 5 to 4 decision is that they resent in the courts what they accept as a matter of course in the Legislatures and in the operations of vox populi. Five Judges against four does look at first like a piece of hard luck. But that is no closer ratio than a bill which passes the House by 240 to 195 or passes the Senate by 50-odd to 40-odd, usually regarded as convincing majorities.

But much more impressive is the American people's acquiescence in the narrow squeak at the poll Grover Cleveland was first elected President by a plurality in New York State of 1,149 votes in a total of 1,125,000 votes. In the whole nation he had a plurality of 63,000 votes in a total of nearly 10,000,000 votes. Garfield "crushed" Hancock in 1880, but that was reckoning by electoral votes; actually Garfield had a plurality of 7,000 votes in the nation. In 1916 Woodrow Wilson won the Presidency by a margin of less than 4,000 votes in California; a change of less than 2,000 votes to Hughes would have given the latter California and the Presidency. More Interesting still, Mr. Cleveland was defeated in 1888, though he had a plurality of nearly 100,000 in the nation; Benjamin Harrison was a "minority" President. Compared with such narrow decisions at the polls a 5 to 4 vote in the United States Supreme Court is a landslide. Yet in its popular elections the American people has regularly accepted the breaks of the game. And it is my suspicion that people are not so indignant—at least not so permanently indignant—about close decisions in the courts as we may have been led to believe.

With all due apologies, therefore, to the shade of Alexander Hamilton, it seems to me that there is very little in the record of the American voting masses to justify apprehension of the mob getting out of hand and thus necessitating a curb by the courts on popular passions and is defense of fundamental rights of the individual. By this time it is pretty well proved that Hamilton guessed wrong when he looked to a small body like the Senate to hold the line against a mob institution like the House of Representatives. Today when somebody in the United States gets entirely out of control the chances are that he is either a member of the Workers' Communist Party or of the United States, Senate, two bodies of extremely limited membership. Nor are the courts so immune to popular sentiment as we like to believe. I trust I am not subjecting myself to the penalties of contempt when I suggest that the decisions of the United States Supreme Court on the Eighteenth Amendment and the Volstead law, uniformly in favor of both, indicate a fairly close harmony between judgment on the, bench and the popular will as expressed in the Legislatures.

If, then, it be true that the American people has never shown a desire to run amuck and go in for tyrannizing and confiscating, it follows that the "curb" of the courts upon popular passions has not been a vital factor in our history. Another way of putting it is to say that when you have a well-behaved, conservative people—and we are now reproached in some quarters for being the most conservative of modern peoples—there is less need for the courts to concern themselves overmuch with "stability." The courts can safely give part of their time and thought to progress. When you have an excitable mon you need "static" courts. When you have a self-controlled mass moving forward in decent order, the courts can afford to function creatively and dynamically, as Judge Cardozo would have them.