Citation: 1 Cardozo L. Rev. 55 1979

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in this country as well as abroad. during the past fifty years there has been a renaissance of active interest in legal philosophy. a number of other important matters. however. that Cardozo's published writings do not deal with many problems that are commonly explored. How much of Cardozo's philosophical thought continues to appear sound in the light of these more recent analyses and to remain pertinent to currently discussed issues in the philosophy of law? The following reflections are addressed to this question. grounds for ascribing negligence and liability. . the basis for the distinction between criminal and civil offenses. Nowhere does he examine. CARDOZO. B. the nature of legal rights and duties. His major philosophical concern was the nature of the judicial process. I It is necessary to remind ourselves. THE NATURE OF THE JUDICIAL PROCESS (1921) [hereinafter cited as CIAL PROCESS]. the analysis of legal personality. Columbia University. and more particularly the considerations that play a role in the reasoning of judges sitting in appellate courts. and his philosophical writings continue to be read. In any event. and the justification of punishment. among practitioners of law as well as among professional philosophers. Indeed. His jurisprudential views as well as his judicial decisions were influential in his lifetime. he entitled the first of his three books on legal philosophy (which.. 1 in which he presented his philosophy of law with impressive learning and arresting (but sometimes distracting) eloquence. the operative meaning or the grounds for the institution of private property. GROWTH]. THE GROWTH OF THE LAW (1924) [hereinafter cited as B. CARDOZO. CARDOZO. JUDI- B. frequently at some length. except perhaps in passing.REFLECTIONS ON "THE NATURE OF THE JUDICIAL PROCESS" ERNEST NAGEL* More than half a century has gone by since Cardozo delivered the three series of lectures. the. though it is difficult to say how widely or with what effect on their readers. reflected his experiences and his heart* University Professor Emeritus. in systematic presentations of legal philosophy. PARADOXES OF LEGAL SCIENCE (1928). the rationale for the legal enforcement of some promises but not of others. subsequently published in three wellknown books. and. like the other two.

if any. One of them in effect denies that cases are ever decided in the light of general principles and with the aid of rational analysis. It is only when this more recent work deals with questions related to the character of "judicial reasoning" that it challenges some of Cardozo's views. and it is with some of the ideas contained in this book that my comments for the most part deal. CARDOZO. JUDICIAL PROCESS. However. in discharging their duty when deciding some of the cases they are required to adjudicate. in part by supporting it with numerous confirming instances. Cardozo's views on the judicial process have been challenged from two diametrically opposed standpoints. but mainly by describing in general terms both the circumstances under which courts must unavoidably legislate as well as the constraints within which judicial lawmaking takes place. and in consequence. supra note 1. he helped to make this claim a widely accepted commonplace. even though he did not adequately characterize and explicate. He distinguished. But because of the relatively narrow range of Cardozo's philosophical writings. Undoubtedly. the method of adhering to the customs and traditions of the community. the greater part of subsequent work in the philosophy of law has little bearing. appellate courts exercise a creative (or "dynamic") function by engaging in "interstitial" legislation. the dominant thesis presented in Cardozo's account of the judicial process is that although in the vast majority of cases coming before appellate courts in the various states of the United States. at 30-31. this book is his fullest and most important exposition of his philosophy of law.CARDOZO LAW REVIEW [Vol. the method of following lines of historical development. and was a conception represented during his own lifetime by one wing of American legal 2 See B. on the issues with which he was chiefly concerned. Cardozo was certainly not the first to maintain that courts often do legislate. the outcome is uniquely determined by extant legal rules-so that in these cases judges have no real choice in reaching their decisions-there are nevertheless "gaps" in the law. 1:55 searchings as a judge on the New York Court of Appeals) The Nature of the Judicial Process. . the method of sociology (to which he attached particular importance). In my opinion. which consists in satisfying the requirements of justice. of the current mores of soci2 ety. The problem to which he devoted much thought was that of making explicit the considerations which play a role in such judicial legislation. four so-called "methods" for applying to the case tinder consideration the principles that supposedly govern precedent cases: the method of seeking and establishing analogies. and of social welfare. and.

Cardozo showed beyond reasonable doubt that the law is not just a set of independent and unrelated individual judicial decisions. in the majority of cases coming before appellate courts. CARDOZO at 7 (M. In recent years.. Dworkin. REv.35 U. 1057 . L. and he did not controvert its proponents explicitly in his published writings. L. on the contrary. 6 Address by Benjamin N. 7 Dworkin. 1947) [hereinafter cited as Cardozo State Bar Address]. Hall ed. reprinted in SELECTED WRITINGS OF BENJAMIN N. and could therefore not perform one of the functions for which the system was instituted and is maintained. reprinted in TAKING RIGHTS SERIOUSLY at 81 (1977). The claim was part of the traditional outlook on the role of courts. A Return to Stare Decisis. REV. e. 6 In this address he dissented vigorously (and I think effectively) from what seemed to be the identification by some legal realists of law with the individual decisions of courts.19791 REFLECTIONS realism." 4 He dealt briefly with this claim in his major book when commenting on what he took to be Austinian doctrine as well as the central thesis of John Chipman Gray. reprinted in R. to the exclusion as completely otiose of the reasons judges give in their opinions for their decisions. "t]here are no such things as rules or principles: there are only isolated dooms. the legal system could not serve (as in fact it does serve) as a guide to conduct. 14 (1967). supra note 1. and. The Model of Rules 1. however. But they took strong exception to his contention that there are pre-existing legal rules that are binding on judges and which. 5 See id. 4 B. 6 AM. CARDOZO. In Cardozo's words. 3 These thinkers agreed with Cardozo that appellate courts do indeed make law. DWORKIN. that if it were. A quite different objection to Cardozo's views on judicial legislation maintains that the corpus of legal rules and principles fully determines what is the correct resolution of any question courts are required to answer-so that judges have no discretion in any significant sense when deciding cases-and that in consequence courts can never rightfully engage in lawmaking. at 125-26. REV. 22. (1975). especially in the two articles The Model of Rules I and Hard Cases. Oliphant. at 126. SCH. CHI. uniquely determine the decisions rendered. New York State Bar Association (Jan.g. L. though it was losing adherents by the time Cardozo served on the bench. Cardozo. 1932). it has been revived and argued at length (though without reference to Cardozo) by Professor Ronald Dworkin. 88 HARV.7 Since the articles have a See. JUDICIAL PROCESS. they maintained that. TAKING RIGHTS SERIOUSLY at 14 (1977). Hard Cases. 215 (1928). that the reasons judges present for their decisions do in fact influence judicial action. 5 but he took fuller notice of the teachings of later legal realists in his address on jurisprudence at a meeting of the New York Bar Association. He apparently did not think the claim had much merit.

9 Id. supra note 7. a person can properly be said to have discretion if. But. for example. principles. an official is said to have strong discretion. ". It must be granted that judges do not. 10 Id.10 He nowhere indicates." but must use judgment in applying them. since judges are in fact bound by legal rules and principles. however this may be. for this follows from the hardly questionable premise that judges are required to perform their functions in consonance with a more or less precisely circumscribed set of rules. and only if. 9 But Dworkin's argument involves a glaring non sequitur. so that in the absence of such identifying marks the assumption has no operative meaning and useful content." the greater weight of one principle over another does "not depend on the judge's own preferences amongst a sea of respectable extra-legal standards . On the other hand. unless a dubious assumption is added to his premises. have strong discretion. what are the telltale stigmata of a supposedly uniquely correct judicial decision. the person is required to make a decision in conformity with certain set standards. or if the decisions he makes cannot be reversed by some other (or "higher") official. at 37. and cannot. Dworkin tacitly makes this assumption when. and standards. 8 Dworkin readily admits that judges frequently do have weak discretion. On the other hand. . which principle justifies the change. he maintains that in changing an existing rule of law judges must "find that the change would advance some principle. if in deciding on a matter he is required to adjudicate he is not bound by any set standards. However. The Model of Rules I. however." and when he further maintains that while some principles "count for more than others. and he therefore concludes that courts can never rightfully engage in lawmaking. Dworkin's contention that courts can never rightfully make law does not follow from the fact upon which he places great stress: that courts have at best only weak discretion -unless it is further assumed that the standards which are binding on judges in performing their legal duties determine the uniquely correct answer to the legal problems appellate courts are expected to solve. 1:55 received considerable attention. the assumption is ' Dworkin.CARDOZO LAW REVIEW [Vol. I want to comment briefly on the relevant portion of their argument. he denies that they have strong discretion. at 69-71. An official is said to have weak discretion if he cannot employ the specified standards controlling his decision "mechanically. at 31-32. According to Dworkin. and he distinguishes between a "weak" and a "strong" sense of discretion.

at 1. Cardozo's account of the method of sociology is not entirely free from serious ambiguity. when in such cases a court decides to accept one answer to a problem rather than another. However. . CARDOZO. and may therefore determine in large measure the content of the appellate decision. even though it has only weak and not strong discretion. For. but are community values which the courts simply recognize-"[i]t is the customary morality of right-minded men and women which [the judge] is to enforce by his decree. the court is in fact making law.2.1979] REFLECTIONS dubious on other grounds. supra note 1. he also believed that especially at times (such as his or ours) of rapid social change. some of it to be found in Cardozo's philosophical writings and judicial opinions. CARDOZO. GROWTH. and questions concerning ends or purposes cannot be explored in any depth without eventually dealing with the requirements of social welfare and social justice. 12 See B. 43. 13 Id. However. CARDOZO. supra note 1. For there is overwhelming evidence. JUDICIAL PROCESS. according to him. B.' 2 even if it is not the method that is most frequently avowed or explicitly employed. But the conceptions judges have of these matters may outweigh the conclusions that they reach by pursuing seriatim the other methods.. at 58.g. at 136-38. at 106. the method of sociology is the most important one. questions concerning the ends of the law in general and of specific legal rules in particular are relevant even in using the other three methods." Accordingly. the central thesis of Cardozo's philosophy of law under consideration has not been shown to be mistaken by either of the two objections just examined. B. e. supra note 1. Cardozo distinguished four "methods" that are used by appellate courts in rationalizing their decisions. He explicitly maintains (and the label he adopts for this method supports this) that the value commitments that play a role in judicial legislation are not necessarily those of the judges making the decisions."1 3 But does this mean that these are the values which the majority (or some other fraction) of the members of the community 11 See. considerations that are at the heart of the method of sociology. JUDICIAL PROCESS. II As has already been mentioned. In short. that at least in a fraction of appellate cases the standards binding upon judges are compatible with more than one prima facie reasonable resolution of the legal issue presented for adjudication.

CARDOZO LAW REVIEW [Vol. Cardozo's unclarity in his exposition of the method of sociology also infects his comments on the nature of law in general. 15 Id. However. Indeed.. given the expectations that the institutional arrangements of the society generate? And in either case. He seems to take for granted that a properly qualified judge will be familiar with the moral standards and ideals of the society of which he is an official. Nor does he suggest any mechanism for diminishing the subjective biases and idiosyncratic conceptions of what are the community values that are bound to accompany judicial decisions reached by the method of sociology so described. supra note 6. "If these are so established as to justify a prediction with reasonable certainty that they will have the backing of the courts in the event that their authority is challenged. He protested against the contrast made familiar by positivistic legal philosophers (such as Justice Holnes) between morality and justice on the one hand and law proper on the other. In short."' 4 he gives no instruction to his readers on how such familiarity is to be acquired. he maintained that there is lying around loose "a vast conglomeration of principles and rules and customs and usages and moralities" which are ready to be selected by courts and embodied into legal judgments. except for an unhelpful reference to "experience and study and reflection. or establish who are the "right-minded" men and women? No clear answer to these questions can be found in Cardozo's writings. but hostile. 16 Cardozo State Bar Address. at 113." 15 He confessed that he preferred "to give the label law to a much larger assembly of social facts" than is recognized by positivistic thinkers. although according to Cardozo's explicit account the method of sociology operates with "objective" values of a community. . at 134. For he believed that the contrast has tended to generate a "distrust and contempt of law. in the opinion of the court. members of the community should hold.. at 18. I say that they are law." and to lead to the view that the law is something "to which morality and justice are not merely alien. he does not show convincingly that the values entering into appellate decisions reached by that method are more than the personal preferences of the courts making them. 1:55 actually hold. how do courts ascertain what these values are.. 16 14 Id. whether or not they explicitly profess those values? Or does it mean that they are values which.

GENY. and some reason for thinking that he has muddied it. rejects a distinction which has been used with enormously clarifying effect by a long line of legal analysts. L. DIE LEHERE VON DEM RICHTIGEN RECHTE (1902). RADBRUCH. nor is there any evidence to show that the abandonment of legal positivism contributes to obtaining more adequate notions of what constitutes social welfare or to the diminution of social injustice. e. down to contemporary positivistic philosophers of law. THE MORALITY OF LAW See. from Bentham. LE DROIT OBJECTIF ET LA Loi POSITIVE (1901). these proposed revivals of natural law. RECHTS- PHILOSOPHIE (4th ed. e. 1919). 18 METHOD DINTERPRETATiON ET SOURCES EN DROIT PRIVE POSITIF L. . Cardozo was reflecting attempts by legal philosophers in France and elsewhere 17 to make plausible a considerably revised version of traditional natural law doctrine. F.. He was also anticipating subsequent criticisms of positivistic legal philosophy in Europe and this country which attributed the barbarisms of National Socialism to the wide acceptance of that philosophy..g. Moreover. (2d ed. G. FULLER. including Cardozo's proposals. 1950). Holmes. R. (1964). DUGUIT.1979] REFLECTIONS In these remarks. STAMMLER. and Gray. '" See. 18 However. Cardozo's readiness to count as law customs and moralities that are likely to receive judicial backing at some future time. Austin. supply no effective guides to reliable moral judgments in the law.g. There is no reason to believe that by abandoning the distinction between law and custom he has added to our understanding of the nature of law. LETAT.