THE NATURE OF THE JUDICIAL PROCESS.
By Benjamin N. Cardozo,
New Haven: Yale University
Press, 1821.
This book is especially welcome just now, after reading Judge Cardozo's
article in the December number of the "Harvard Law Review," entitled "A
Ministry of Justice," which shows that his study of the nature of the
judicial process has led him to seek for practical means to correct the
errors that have crept into the law in the application of legal
principles. This article in the "Harvard Law Review" is in itself the
result of his study during his long experience on the Bench of the
problem he deals with in these lectures on the nature of the judicial
process. The book consists of four lectures delivered in the William L.
Storrs' lecture series in the Law School of Yale University, 1921. The
titles of the lectures suggest the scope of his inquiry. They include:
The Method of Philosophy; The Methods of History, Tradition and
Sociology; the Judge as a Legislator; Adherence to Precedent; The
Subconscious Element in the Judicial Process.
"Any Judge," he says, "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." In telling of the study of precedents
in arriving at the rule of law to be applied to the decision of cases,
he takes up, first, in the introduction, the method of philosophy and
inquiries, in what proportions different sources of information shall be
allowed to contribute to the result. If a precedent is applicable, when
shall he refuse to follow it, and if no precedent is applicable, how
does he reach the rule that will make a precedent for the future? "If,"
he says, "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 or morals?" And
again, he says: "The first thing he does is to compare the case before
him with the precedents, whether stored in his mind or hidden in the
books. I do not mean that the precedents are ultimate sources of the
law, supplying the sole equipment for the legal armory, the sole tools,
to borrow Maitland's phrase, 'in the legal smithy.' Back of precedents
are the basic juridical conceptions which are the postulates of judicial
reasoning, and farther back are the habits of life, the institutions of
society, in which those conceptions had their origin, and which, by a
process of interaction, they have modified in turn."
In the lecture on the methods of History, Tradition and Sociology, he
shows how the method of Philosophy comes in competition with other
tendencies which find their outlets in other methods. The tendency of a
principle to expand itself to the limit of its logic may be counteracted
by the tendency to confine itself within the limits of its history.
"Very often," he says, quoting Justice Holmes, "the effect of history is
to make the path of logic clear. History, in illuminating the past,
illuminates the present, illuminates the future."
The law of real property supplies the readiest example of a field where
there can be no progress without history, and where "a page of history,"
to quote Holmes again, "is worth a volume of logic."
He refers to leading examples of cases in which history has moulded the
rules established by precedents and customs, and how the Law Merchant
has not been moulded into a code, but has been expanded and enlarged to
meet the wants of trade, and how the course of dealing to be followed is
defined by the customs, or, more properly speaking, the usages of a
particular trade, or market, or profession, and the natural and
spontaneous evolutions of habit fix the limitation of right and wrong.
The law of real estate is taken merely as an example. Maitland, Holmes,
Pollock and Pound, and many others, have pointed out the historical
origins and development in the forms of action, the law of pleading, the
law of contract, and the law of torts. The historic influences are
strong in some departments of the law, and in others larger and
fundamental conceptions tend to control the judicial mind, and there is
a tendency to harmony of the law of different countries.
From History and Philosophy and custom he passes to the power of Social
Justice, which he says is the force that in our day is becoming the
greatest of the directive forces of the law. It is by the way of history
and tradition that he comes to the method of Sociology. It is by the
common law method of applying old principles to new conditions that
Courts have been able to preserve the continuity of the law in changing
conditions.
Among the leading cases cited is the Bakeries case, Lochner v. New York,
198 U. S. 45, wherein Judge Cardozo suggested that in this decision the
dissenting opinion of Justice Holmes was the beginning of a new point of
view in the dealing with the social welfare, which, he said, has since
written itself into law. Justice Holmes made the remark, "The Fourteenth
Amendment does not enact Herbert Spencer's Social Status," and Judge
Cardozo cites later cases in the Supreme Court to the effect that "A
constitution is not intended to embody a particular economic theory,
whether of paternalism ... or of _laissez faire_." It was by careful
research of the effect of long hours of work for women that the change
of opinion was brought about.
There is a short and very interesting lecture on precedents that are of
doubtful value questioning what ought to be done with them. He quotes
President Roosevelt's message to Congress, December 8, 1908, in which he
says: "The chief lawmakers in our country may be, and often are, the
Judges, because they are the final seal of authority.... The decisions
of the Courts on economic and social questions depend upon their
economic and social philosophy; and, for the peaceful progress of our
people during the Twentieth century, we shall owe most to those Judges
who hold a Twentieth century economic and social philosophy and not a
long and out-grown philosophy which was itself the product of primitive
economic conditions." This aroused at the time, he says, a storm of
criticism and betrayed ignorance of the nature of the judicial process,
but the author said he had no quarrel with the doctrine that Judges
ought to be in sympathy with the spirit of their times. Yet this does
carry us very far upon our road to the truth. The spirit of the age, as
it is revealed to each of us, is only too often only the spirit of the
group in which the accidents of birth, or education, or fellowship have
given us a place. No effort or revolution of mind will overthrow utterly
and at all times the empire of these unconscious loyalties.
The relation of the law to the economic and social progress is of great
importance at this time, and it is well for us to have the help of this
thoughtful and suggestive discussion by an experienced and conscientious
Judge.