BENJAMIN CARDOZO’S

JUDICIAL PROCESS

CHAPTER 1

INTRODUCTION

Legacy and Jurisprudential Influence of Justice Benjamin N. Cardozo

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was one of the most

distinguished American jurists of the early 20th century. His legal career was marked

by a commitment to justice, intellectual rigor, and a deep understanding of the

evolving nature of law. Beginning his judicial service on the New York Court of

Appeals, Cardozo quickly established himself as a profound legal thinker whose

decisions helped shape the contours of American common law. His legal philosophy

reflected both innovation and reverence for tradition, striking a balance that

resonated with scholars and practitioners alike.

Cardozo's appointment to the United States Supreme Court in 1932 by President

Herbert Hoover marked the culmination of his judicial career. Despite serving only

six years on the nation's highest court, his presence left a lasting impact. As an

Associate Justice, he brought with him a legacy of landmark decisions from his

eighteen-year tenure on the New York Court of Appeals. Many of these earlier

decisions are still studied for their clarity, reasoning, and forward-looking

perspective. On the Supreme Court, he continued to apply his deep understanding of

constitutional principles, further enhancing his influence on American legal thought.

What truly set Cardozo apart was not just the substance of his rulings, but the style in

which he expressed them. Known for his vivid prose, philosophical insights, and

humility, he transformed legal opinions into eloquent expressions of judicial

reasoning. His writings often transcended the technicalities of law to touch on

broader moral and societal issues. Cardozo’s work remains an enduring example of

how legal thought can be both principled and adaptable, making him a towering

figure in the history of American jurisprudence.

Family Heritage and Early Life of Benjamin N. Cardozo

Benjamin Nathan Cardozo was born in New York City into a family with deep

historical and cultural roots. His parents, Rebecca Washington and Albert Jacob

Cardozo, belonged to prominent Sephardic Jewish lineages that were part of the

Portuguese Jewish community in Manhattan. His maternal grandparents, Sara Seixas

and Isaac Mendes Seixas Nathan, and his paternal grandparents, Ellen Hart and

Michael H. Cardozo, were members of Congregation Shearith Israel—the oldest

Jewish congregation in the United States. Their families had emigrated from England

prior to the American Revolution, carrying with them the legacy of Jews who had

fled the Iberian Peninsula during the time of the Inquisition. While family tradition

claimed ancestry from Marranos of Portugal, definitive genealogical links have not

been firmly established. Nevertheless, surnames such as “Cardozo,” “Seixas,” and

“Mendes” reflect their Lusitanian heritage.

Benjamin was born a twin, sharing his birth with his sister Emily, in a household

shaped by tradition, faith, and intellectual ambition. His early life was steeped in the

values of education and public service, characteristics that would later define his

judicial philosophy. One of the fascinating connections in his family tree is to the

celebrated poet Emma Lazarus, known for her sonnet “The New Colossus,” which is

inscribed on the pedestal of the Statue of Liberty. This link to prominent figures in

American cultural life underscored the influence of Cardozo’s extended family in

shaping not only his personal identity but also their contribution to American society

more broadly.

Cardozo’s name carried significant meaning. He was named after his maternal uncle,

Benjamin Nathan, who had been a vice president of the New York Stock Exchange

and whose shocking murder in 1870 became one of the most infamous unsolved

cases in New York’s history. The association with his uncle gave young Cardozo a

lasting connection to the world of finance and law, possibly inspiring his future path

in the judiciary. His rich heritage, coupled with the intellectual environment in which

he was raised, laid a strong foundation for his eventual emergence as one of the most

respected legal minds in American history.

Judicial Legacy and Family Scandal in Cardozo’s Early Influence

Albert Jacob Cardozo, the father of Benjamin N. Cardozo, held a prominent position

in New York’s legal landscape as a judge on the Supreme Court of New York, the

state's principal trial court. His career initially exemplified the respect and authority

associated with judicial office during the mid-19th century. However, his tenure was

marred by a significant controversy in 1868, during a period of intense economic and

legal conflict known as the Erie Railway takeover wars. This episode revealed deep-

seated corruption within the judiciary and exposed the vulnerabilities of the legal

system to corporate influence and political manipulation.

The scandal involving Albert Cardozo became a major turning point in New York's

legal history. Accusations emerged that he and other judges had issued questionable

rulings to support rival factions vying for control of the Erie Railway Company. The

fallout from these revelations was severe and prompted widespread public outrage. In

response, legal professionals and reformers pushed for institutional changes to

restore the credibility of the judiciary. One of the most significant outcomes of this

crisis was the formation of the Association of the Bar of the City of New York, an

organization committed to legal ethics and professional integrity. Facing mounting

pressure and a damaged reputation, Albert Cardozo resigned from his judicial

position to avoid impeachment.

Following his resignation, Albert Cardozo returned to private legal practice, where

he continued to work until his death in 1885. Although his judicial career ended in

controversy, his continued involvement in the legal field likely had a lasting

influence on his son, Benjamin. The early exposure to both the heights and pitfalls of

legal authority may have shaped Benjamin Cardozo’s deep respect for judicial ethics

and his lifelong pursuit of fairness, transparency, and moral responsibility in the law.

This complex legacy added another layer of depth to Cardozo’s own distinguished

career in the American judiciary.

Early years

Rebecca Cardozo died in 1879 when Benjamin was young. He was raised

during much of his childhood by his sister Nell, who was 11 years older. One of

his tutors was Horatio Alger.At age 15, Cardozo entered Columbia University where

he was elected to Phi Beta Kappa,and then went on to Columbia Law School in

1889. Cardozo wanted to enter a profession that could materially aid himself and his

siblings, but he also hoped to restore the family name, sullied by his father's actions

as a judge. When Cardozo entered Columbia Law School, the program was only two

years long; in the midst of his studies, however, the faculty voted to extend the

program to three years. Cardozo declined to stay for an extra year, and thus left law

5 
 
school  without  a  law  degree.  He  passed  the  bar  in  1891  and  began  practicing 
appellate law alongside his older brother. Benjamin Cardozo practiced law in New 
York City until 1914. In November 1913, Cardozo was narrowly elected to a 14-year 
term on the New York Supreme Court, taking office on January 1, 1914. 
 
New York Court of Appeals 
In February 1914, Cardozo was designated to the New York Court of Appeals under 
the Amendment of 1899, and reportedly was the first Jew to serve on the Court of 
Appeals. In January 1917, he was appointed to a regular seat on the Court of Appeals 
to fill the vacancy caused by the resignation of Samuel Seabury, and in November 
1917, he was elected on the Democratic and Republican tickets to a 14-year term on 
the Court of Appeals. In 1926, he was elected, on both tickets again, to a 14-year 
term as Chief Judge. He took office on January 1, 1927, and resigned on March 7, 
1932 to accept an appointment to the United States Supreme Court. 
 
His tenure was marked by a number of original rulings, in tort and contract law in 
particular. This is partly due to timing; rapid industrialization was forcing courts to 
look  anew  at  old  common  law  components  to  adapt  to  new  settings.  In  1921, 
Cardozo gave the Storrs Lectures at Yale University, which were later published as 
The  Nature of  the  Judicial  Process (On line  version),  a  book  that  remains 
valuable  to  judges today. Shortly thereafter, Cardozo became a member of the group 
that founded the American Law Institute, which crafted a Restatement of the Law of 
Torts, Contracts, and a host of other private law subjects. He wrote three other books 
that also became standards in the legal world.[5] 

6 
 
 
 
 
 
While on the Court of Appeals, he criticized the Exclusionary rule  as developed by 
the  federal  courts,  and  stated that: "The  criminal  is to  go  free  because  the 
constable has  blundered."  He  noted  that  many  states  had  rejected  the  rule,  but 
suggested  that  the  adoption by the  federal  courts would  affect  the practice  in  the 
sovereign states. 
 
United States Supreme Court 
In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the 
United States to succeed Justice Oliver Wendell Holmes. The New York Times said 
of Cardozo's appointment that "seldom, if ever, in the history of the Court has an 
appointment  been  so  universally commended." Democratic Cardozo's appointment 
by a Republican president has been referred to as one of  the few Supreme Court 
appointments in history not motivated by partisanship or politics, but strictly based 
on the nominee's contribution to law. However, Hoover was running for re-election, 
eventually against Franklin Roosevelt, so a larger political calculation may have been 
operating. 
 
Cardozo was confirmed by a unanimous voice vote in the Senate on February 24. 
On a radio broadcast on March 1, 1932, the day of Cardozo's confirmation, Clarence 
C. Dill,  Democratic  Senator  for  Washington,  called  Hoover's  appointment  of 
Cardozo "the finest act of his career as President".The entire faculty of the University 
of Chicago Law School had urged Hoover to nominate him, as did the deans of the 
law  schools  at  Harvard,  Yale,  and Columbia.  Justice  Harlan  Fiske  Stone  strongly 
urged Hoover to  name Cardozo,  even offering to resign to make  room for  him  if 
Hoover had 

his heart set on someone else (Stone had in fact suggested to Calvin Coolidge that he

should nominate Cardozo rather than himself back in 1925). Hoover, however,

originally demurred: there were already two justices from New York, and a Jew

on the court; in addition, Justice James McReynolds was a notorious anti-Semite.

When the chairman of the Senate Foreign Relations Committee, William E. Borah of

Idaho, added his strong support for Cardozo, however, Hoover finally bowed to the

pressure.

Cardozo was a member of the Three Musketeers along with Brandeis and Stone,

which was considered to be the liberal faction of the Supreme Court. In his years as

an Associate Justice, he handed down opinions that stressed the necessity for the

tightest adherence to the Tenth Amendment.

Death

In late 1937, Cardozo had a heart attack, and in early 1938, he suffered a stroke. He

died on July 9, 1938, at the age of 68 and was buried in Beth Olam Cemetery in

Queens. His death came at a time of much transition for the court, as many of the

other justices died or retired during the late 1930s and early 1940s.1

1 en.wikipedia.org/wiki/Benjamin_N._Cardozo

CHAPTER 2

1. The Method of Philosophy

Benjamin N. Cardozo book the nature of judicial process deals with four chapters: 1.

The Method of Philosophy; II. The Methods of History, Tradition and Sociology; III.

The Method of Sociology and the Judge as a Legislator; IV. Adherence to Precedent,

the Subconscious Element in the Judicial Process.

Benjamin Cardozo’s discussion on the nature of the judicial process begins with a

series of questions asking precisely what a judge does when he decides a case. In the

The Nature of the Judicial Process, he posed the problem thus:

“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, how do I

reach the rule that will make a precedent for the future?”2

He sees as the force formulating "judge made law" some principle whether it is

unavowed, inarticulate or Subconscious. Conscious principles which are to guide the

judge in arriving at decisions in appellate cases are latent within the cases, and they

may be separated and classified. Of the subconscious forces which lie behind a

judge's decision he says: "All their lives, forces which they do not recognize and

cannot name, have been tugging at them-inherited instincts, traditional beliefs,

Acquired convictions, and the resultant is an outlook on life, a conception of social

needs, a sense in James' phrase of the total push and pressure of the cosmos,”3

Which, when

2 Benjamin N. Cardozo, the Nature of the Judicial Process, p.10

3 Ibid.,p.13

reasons are nicely balanced, must determine where choice will fall.-These

subconscious forces, however, and their influence in decision, were never treated

very completely by Cardozo. The questionnaires as to where the law is to be found

that the judge will apply. Cardozo does not deny that when constitution and statute

are clear, the judge' s search is at an end. In this event the role of the judge becomes

secondary. But not so clear is the area left by the gaps in the law. For these

exigencies he advocates a method of interpretation by the judges within the

interstitial limits of the Jus scriptum suggested by Geny and Ehrlich “ a method of

free decision- Libre recherché scientifique”4 of this judicial interpretation he says “

the function flourishes and persists by virtue of the human need to which it

steadfastly responds”5. It is important to note that Cardozo is urging this method of

free decision in the instance where statute and constitution fail. At this point the

common law as interpreted by the judge comes into play in filling the gap. He freely

admits that stare decisis is “at least the everyday working rule”6 of the law. Yet he

sees the method of free decision as the process that gives a system of living law.

Finally, he points to the need for a guide to govern the choice of the judgments

potentially applicable in a given case, in order that the judgment rendered is not the

personal whim or caprice of the judge.

Cardozo warns that common law, though a gradual development of judicial decisions

over the years, does not work from “pre-established truths of universal and

inflexible validity to conclusions derived from them deductively. 7 ” Rather, it

developed inductively, moving from the particular to the general. He observes the

phenomenon of changes in judicial decisions in specific areas of law, construction of

spite fences, and ones allowed, is now prohibited, rights of action, formerly non-

assignable, may now be assigned. He has seen the process of gradual change in man-

made law come full circle, holding something lawful that was formerly unlawful, and

it prompts the remark: “nothing is stable. Nothing is absolute. All is fluid and

Ibid.,p.20

changeable.”8 There is an endless “becoming’ we are back with Heraclitus.” from

these observations of ceaseless change in law, the need for a stability upon which to

predicate decision emerges clearly. This is the heart of his problem.

Cardozo states this problem that confronts the judge as twofold:

“He must first extract from the precedent the underlying principle, the ratio

decidendi, he must then determine the path or the direction along which the principle

is to move or develop, if it is not to wither and die”.9 He does not dwell long on the

first part of the judge’s method, the extraction of the principle from the cases decided

in the past, but turns quickly to his main concern, the application of the principles

extracted to the case before the judge. Edwin Patterson has observed, concerning the

lectures comprising the Nature of the Judicial Process, that they are “the most

philosophically native and yet the most vigorous and constructive of the three books”

which Cardozo wrote on the philosophy of law. The vigour and urgency of this

work stems from the

7 Benjamin N. Cardozo, the nature of the judicial process, page no 22 8 Benjamin N.

Cardozo, the nature of the judicial process, page no 28 9 Benjamin N. Cardozo, the

nature of the judicial process, page no 28

formulation of what have now become the famous four methods of applying a

principle or rule of law to a case.

Cardozo states the four methods: “the directive force of principle may be exerted

along the line of logical progression, this I will call the rule of analogy or the method

of philosophy, along the line of historical development, this I will call the method of

evolution, along the line of the customs of the community this I will call the

method of tradition, along the line of justice, morals and social welfare, the mores of

the day, and this I will call the method of sociology.10” These methods outlined, he

turns to the first method, the method of philosophy, to analyse and describe it.

Cardozo treats the method of philosophy first because it has certain “presumption” in

its favour. “it has the primacy,” he says “that comes from natural and logical and

orderly succession”11 Again he speaks of “ the principle of philosophy, I.e., of logical

development”.12 In the absence of some sufficient reason to the contrary, the method

of philosophy is to be used. It might seem that for Cardozo the method of philosophy

is equivalent to the method of logic, or that philosophy is viewed by him as being

simply logic. But perhaps his real thought may be found in his observation on

the need for the use of this “logical” method”: “adherence to precedent must then be

the rule rather than the exception if litigants are to have faith in the even-handed

administration of justice in the courts.13” Thus Cardozo did not simply equivalent

philosophy and logic, but rather considered that simple adherence to precedent was

logical, and hence a philosophical, approach. Moreover, it seems that in this

method

10 Benjamin N. Cardozo, the nature of the judicial process, page no 30 &31

11 Benjamin N. Cardozo, the nature of the judicial process, page no 31 12 Benjamin N.

Cardozo, the nature of the judicial process, page no 32 13 Benjamin N. Cardozo, the

nature of the judicial process, page no 34

Cardozo saw a partial solution to the problem of giving stability to judge-made law.

He views the work of the judge in applying this method as the task of “keeping

the law true in its response to a deep-seated and imperious sentiments.14”

To describe Further the method of philosophy he turns to case in which the method is

applied. The cases analysed are predominantly those in which a strictly logical and

unbending application of a principle of law has worked a grave injustice, or that class

of cases in which an injustice was averted by restoring to an opposite principle. It is

when two lines of logical progression converges, both stemming from an established

legal principle, that “history or custom or social utility or some compelling sentiment

of justice must come to the rescue of the anxious judge, and tell him where to go.

He realizes that sentiment cannot yield to logic and the reason must control the play

of sentiment. Justice and sentiment guide in the choice between the two principles,

and reason “in its turn reacted upon sentiment by purging it of what is arbitrary, by

checking it when it might otherwise have been extravagant, by relating it to the

method and order and coherence and tradition.”15

Cardozo points out that the misuse of this method of Philosophy “being when its

method and its ends are treated as supreme and final.16” With Geny, he recognizes

the need for a human positive law that grows with the times. The method of

philosophy will furnish in part that principle of growth for human positive law. For

the essence of the method of philosophy is “the derivation of the consequence from a

rule or a principle or a precedent which, accepted as a datum, contains implicitly

within itself

14 Benjamin N. Cardozo, the nature of the judicial process, page no 35 15 Benjamin N.

Cardozo, the nature of the judicial process, page no 45 16 Benjamin N. Cardozo, the

nature of the judicial process, page no 46

the germ of the conclusion.”17 It will be interesting for one reading Cardozo’s

first philosophical work to note the frequent reference to Francis Geny.

17 Benjamin N. Cardozo, the nature of the judicial process, page no 49

CHAPTER 3

Lecture II: The Methods of History, Tradition and Sociology

Cardozo describes the other three methods or principles of selection guiding the

judge in the path of developing the system of living law. This is the methods of

history, custom and sociology. It does not delay long on the method of history, For

him the method of history is predominantly an investigation of origins as opposed to

the method of philosophy or the logic which is mainly the work of reason. It is clear

that in his development of the method of history he limits that method to clarifying a

problem in law rather than solving it. Equally clear is Cardozo’s refusal to approve of

historical school of jurisprudence, such as that advanced in the nineteenth century

F.C. Von Savigny (1779-1861). Of this historical school A.P.D “Entreves has this to

say:

“ the historical school had begun by stressing the growth and development of law, it

ended by fostering its scientific study. It had begun with an apology for history. It

ended with an apology for jurisprudence.’ To such a narrow view of jurisprudence

Cardozo did not give his approval. For him the duties of a judge went beyond bare

historical exegesis of the problems occurring in judicial process.

Cardozo admits that the development of positive law has taken place in a historical

context. He realizes also that the development of positive law considered apart from

that context would be meaningless for those interpreting it. It seems clear that

his

sympathy does not lie with this historical method, though he admits its utility in areas

such as the interpretation of the law of feudal tenures and contracts.

The third method or principle of selection to guide the judge in determining the

application of a principle of the law is the method of custom. Cardozo rejects Coke’s

theory that the common law is separated from customs, and Blackstone’s that custom

pervades all of the law. These were the old views, the views that prevailed at

different times in the thought of English Jurisprudence. Cardozo’s view is more

moderate. “In these days,’ he says, “at all events, we look to customs, not so much

for the creation of new rules, but for the tests and standards that are to determine how

established rules shall be applied.’ Customs, if it is to obtain the dignity of positive

human law must do so through legislation. It is enough for Cardozo that the method

of custom exercise its creative power “not so much in the making of new rules as in

the application of the old ones.” But the potential of custom to be extended until it

becomes identified with “customary morality, then prevailing standard of right

conduct,” brings the method of custom or tradition to the point of convergence with

the last method, the method of sociology.

Guiding Principles in the Evolution of Law

In the dynamic realm of legal development, Justice Benjamin N. Cardozo identified

three fundamental methods that influence the shaping of jurisprudence: the method

of history, the method of tradition or custom, and the method of sociology. These

approaches underscore the reality that law is not static, but a living institution,

continuously adapting to the ever-changing needs of society. The historical method

examines the origins and evolution of legal doctrines, offering a foundation that

anchors current legal practices in established precedent. This connection to the past

ensures stability and continuity, preserving the integrity of the legal system through

time.

The method of tradition or custom emphasizes the cultural and societal norms that

shape the practical application of law. Customs often precede codified rules and

reflect the lived experiences of people within a legal framework. This method

recognizes that legal norms must resonate with the values of the community they

serve. Through the incorporation of longstanding customs, the law gains legitimacy

and acceptance, reinforcing social cohesion. Cardozo viewed tradition not as a barrier

to progress, but as a meaningful guide that helps legal systems evolve without

disconnecting from their roots.

Lastly, the method of sociology focuses on the societal impact of legal decisions and

the need to align laws with contemporary social conditions. This pragmatic approach

encourages judges to consider the consequences of their rulings on the community at

large, ensuring that justice serves practical ends. By addressing the real-world

challenges and expectations of society, the sociological method ensures that law

remains responsive and relevant. Together, these three methods form a robust

framework that guides judicial reasoning, balancing the need for innovation with the

wisdom of experience and the demands of the present.

1. The Method of History

Cardozo briefly acknowledges the historical method as a valuable but limited

approach in the judicial process. According to him, the historical method is primarily

concerned with tracing the origins of legal concepts, institutions, and doctrines.

Unlike philosophical or logical approaches that rely on abstract reasoning and

deduction, the historical method is rooted in an empirical and chronological

investigation of the law’s past. It seeks to understand how legal principles have

developed over time and how they are shaped by the cultural, economic, and political

conditions of earlier periods.

However, Cardozo does not place significant emphasis on this method for solving

contemporary legal problems. For him, history provides clarification, not

resolution—it is an aid to understanding a legal issue, but not necessarily the most

effective method for resolving it. He distances himself from the Historical School of

Jurisprudence, notably represented by the German jurist Friedrich Carl von

Savigny, who believed that law evolves organically from the spirit of the people

(Volksgeist) and that its development must follow historical continuity rather than

rational construction.

In this context, A.P.D. Entreves critiques the Historical School by noting that while it

began by emphasizing the growth and organic development of law, it ultimately

became preoccupied with the scientific and academic study of legal systems, rather

than their practical development. Cardozo rejects such a narrow, backward-looking

focus. Instead, he insists that a judge’s responsibility must go beyond mere historical

explanation; it should actively engage with the living realities of the present and

anticipate the needs of the future.

Nevertheless, Cardozo concedes that historical context cannot be ignored altogether.

The development of positive law, i.e., law that is formally enacted or adopted by

competent authorities, is embedded in history. To interpret positive law outside of its

historical roots would render it meaningless or detached from its social foundations.

For instance, legal concepts such as feudal tenures or early forms of contract can

only be properly understood through their historical development.

2. The Method of Tradition or Custom

The second method Cardozo discusses is the method of custom or tradition, which

examines how long-standing practices and social behaviors influence legal

development. In earlier English jurisprudence, this method sparked significant

debate. On one hand, Sir Edward Coke viewed common law as distinct from

customs, whereas Sir William Blackstone argued that custom permeates and shapes

all areas of law. Cardozo adopts a more balanced position, acknowledging the role

of custom but rejecting both extreme viewpoints.

For Cardozo, the importance of custom lies not in the creation of entirely new legal

rules, but rather in providing standards and tests that guide the application of

already established principles. In this sense, custom operates more as a lens

through which legal norms are interpreted and less as a generator of law in itself. The

creative power of custom is subtle—it does not invent the law, but it informs its

practical implementation.

He emphasizes that custom can influence law only when it gains recognition through

legislation or judicial acknowledgment. However, custom's impact goes beyond

formal structures. As customs evolve and reflect the prevailing values of society,

they often merge with the broader moral consciousness of the time, shaping what

Cardozo calls the “customary morality”—the socially accepted norms and

principles of right conduct.

This capacity of custom to reflect shared societal standards places it at a

convergence point with the sociological method, since both are concerned with the

ethical and cultural environment within which laws operate.

3. The Method of Sociology

The third and perhaps most modern approach Cardozo considers is the method of

sociology, which represents an adaptive and pragmatic response to the changing

conditions of society. The sociological method focuses on the real-world impact of

legal rules and decisions, aiming to align law with social needs, economic changes,

and human welfare. It urges judges to consider not just historical origins or

traditional practices but to ask: What is the effect of this rule in today’s society?

Does it promote justice, efficiency, and the common good?

This method is deeply concerned with practical consequences. It recognizes that

law cannot be static or insulated from societal transformations. The social method

asks the judge to weigh policy considerations, social utility, and ethical

implications when interpreting or applying legal principles. Cardozo believes that

this approach ensures that law remains a “living body”, capable of growing with

society rather than becoming an outdated relic of the past.

In essence, the sociological method gives law its human face. It prioritizes justice

and social harmony over rigid formalism, inviting a flexible, forward-looking

attitude. Cardozo's embrace of the sociological approach is not an abandonment of

principle, but rather a recognition that law must be responsive to human experience

and the evolving structure of society.

The methods of history, tradition, and sociology represent three complementary

perspectives through which judges and jurists can understand, interpret, and apply

legal principles. Cardozo respects each method for its unique contribution but

ultimately advocates for a balanced approach, one that honors historical roots and

traditional customs while remaining sensitive to present realities and future demands.

For Cardozo, the judge is not merely a custodian of past wisdom, but a participant

in the continuous construction of justice, guided by both tradition and the evolving

needs of society.

CHAPTER 4

Lecture III: The Method of Sociology. The Judge as a Legislator

From the first three methods of selection, i.e., of philosophy of history and of

customs, we see that no one method is free from all trace of one or more of the other

methods. The same phenomenon is true of the last method, the method of sociology.

Cardozo understands the method of sociology as a larger and more all-inclusive

method than any of the former three. Of this method he says: “finally, when the

social needs demand one settlement rather than another, there are times when we

must bend symmetry, ignore history, and bend custom in the pursuit of other and

larger ends.” He states as the final cause of law the welfare of society, and points out

that all other methods are dominated by this cause. Since this method of sociology is

to be the tool or instrument of the judge, there must be some limit to the method to

prevent its uncontrolled exercise by the judge. The method of sociology is, for

Cardozo, the method par excellence for filling up the “gaps in the written law.”

Many jurists and philosophers of the law have stressed the restrictions on the

discretion of the judge in his “filling in the gaps” Few summed it up more tartly than

Holmes: “ I recognise without hesitation,” he said , “ that judges must and do

legislate, but they do so only interstitially, they are confined from molar to molecular

motions.” But Cardozo is concerned not so much with the rise of the gap to be

filled as he is with “the principle that shall determine how they are to be filled,

whether their size be great or small.” Here again the emphasis is placed on the

method of selection rather than on what is selected, and the method of sociology in

making this selection

he takes as its criterion the social welfare. Difficult enough is the task of formulating

the methods of selection, but more difficult by far is the task of interpreting them.

“social welfare” 18 is sufficiently broad in scope to resist any telling definition.

Cardozo realises that social welfare can mean public policy or the social gain from

adherence to a standard of right conduct- the mores of a community. “In such cases,”

he says “its demands are those of religious or of ethics or of the social sense of

justice, whether formulated in creed or system, or immanent in the common mind.”

That Cardozo’s theory of law within the judicial process had a high moral content

will emerge more clearly with time. One may see, however, that he constantly

stresses the need for a moral content in law within his concept of the social welfare

so essential to his method of sociology. This concept of the social welfare is in many

respects analogous to the bonum commune in the Thomistic definitions of law. For

Cardozo insists that one must look not only to individual reason for the rule but to the

social welfare, the common good as well.

Cardozo analyses and describes the method of sociology with a class of cases both in

constitutional law and in certain branches of private law. He regards the area of

constitutional law as perhaps the most suited to the application of this method, since

the constitution extends to a larger area than other rules and laws. Accordingly, the

treatment of certain rights must be in larger and more general concepts. In the

reduction to the particular case, there is the opportunity and need for the judge to rule

whether an act or a statute is violative of or in accord with the restriction or guaranty

stated in the constitution.

18 Benjamin N. Cardozo, the nature of the judicial process, page no 25

Liberty within the due process clause of the constitution clearly requires the

interpretation of the judge to set its limits in particular cases. For Cardozo, the

method of sociology is to be used to define liberty in these cases, but with the

reservation that it may include a part of one or more of the other methods. Cardozo

realizes the need for an interpretation of the “liberty and property” are, but he also

realizes the need for an objective criterion to control the judge’s interpretation. It is

interesting to note the conclusions of his passages urging a technique of “free

decision”19 consistently and with a caution against extreme subjectivity. His position

may be said to be moderate, though at the beginning of his philosophical writing on

the judicial process he was regarded as a liberal.

Of Cardozo’s method of sociology Edwin Patterson says: “the fourth method’ that of

sociology, is not coordinate with the other three. In a sense it is subordinate or

inferior to them, because of the probability that the logical attainment of established

rules will give the court a guide which will be adequate to the needs of justice.” The

method of sociology signifies, for Patterson, “an appeal to ‘equity’ in the Aristotelian

sense” But to view the method of sociology merely as an appeal to equity is

unnecessarily to limit that method. Closer to Cardozo’s estimate of the role of that

method is the description of it by Helmut Coing, Dean of the Law Faculty,

University of Frankfurt, Germany; he Cardozo understands by this method of

sociology the decision on consideration of the Bonum commune, equity and social

justice.’ The decision spoken of by Coing is that of the appellate judge. So the

method of sociology, rather than being limited to determining exceptions to the

law (as is equity), would provide

19 Benjamin N. Cardozo, the nature of the judicial process, page no 16

material for the formation of new laws where adherence to old laws would simply

result in injustice because of social change. Beyond a mere appeal to “equity,” then,

the method of sociology seems the method par excellence to exert the principles of

natural law. And though the method lacks the definiteness that may attach to the

other methods, it cannot, for that reason alone, be subordinate or inferior. The very

fact that for Cardozo this method of sociology regulated the other methods when they

were in conflict with one another militates against any such conclusions.

The method of sociology is for Cardozo the method by which the end of law i.e, the

social welfare, is served. He believes the teleological conception of law is constantly

before the judge, and he concludes that the “common law at bottom the philosophy

of pragmatism.” But Cardozo insists that the fact that a law is successful has nothing

to do with its validity. He urges that such an extreme position would be

destructive of the consistency and uniformity secured by using the other methods.

This method of sociology is guided by viewing the end of law. As Cardozo puts it:

“The final principle of selection for judge, as for legislators, is one of fitness to an

end.” But he is careful to stress the duty of the judge in attaining this end: “nothing

less than conscious effort,’’ he says, “will be adequate if the end in view is to prevail.

The standards or patterns of utility and morals will be found by the judge in the life

of the community. They will be found in the same way by the legislator.” The

analogy between the function of judge and legislator now emerges in Cardozo’s

thought. The legislator creates by framing new laws suited to the needs of the

community for which he legislates, the judge legislates only in the gaps left by the

legislation, but cannot, in Cardozo’s opinion, be blind to the same needs he

observes in the community. The

judge’s function is performed by using one of the methods of selection, in this way

he is said to legislate.

Cardozo points out the divergence of thought on the question of whether the judge

should use a subjective or objective standard to determine the norms of right and

useful conduct. He notes and approves the need for an objective standard to prevent

“what the Germans call “Del Gefuhlsjurisprudenz,” a jurisprudence of mere

sentiment or feeling. He rejects the view that the subjective standard should prevail,

and says the standard should be that of the community, the mores of the time. But

here he cautions that this does not mean “that a judge is powerless to raise the level

of prevailing conduct.” Cardozo is concerned with the case in which practices that do

not meet accepted standards of morality have gained a temporary hold. In such a case

he believes that it is the duty of a judge to hold to the accepted standards of morality.

This action he seems to equivalent with a subjective measure, when in reality it

would be objective if measured by the “accepted standards of morality” in the event

that they are not interpreted subjectively. The predominating desire is to raise the

standards of morality at a high level and keep them there. This is one of the notes in

his concept of the judicial process the judge must insure that the law its application

has a high moral content.

Misleading both in its brevity and simplicity is his analysis of the judicial process

itself: “my analysis of the judicial process comes then to this, and little more:

logic and history and custom and utility, are the accepted standards that singly or in

combination shape the law” here the search for Cardozo’s concept of the judicial

process might stop, if this scant statement did not contain within itself the

obvious

question as to what determines the application of one method in preference to

another, and at what point the desirability for symmetry the elegantia juris should be

sacrificed for larger interests. In the main, he urges adherence to precedent. But

equity is not administered by legislatures. “the social interest,” says Cardozo, “served

by symmetry or certainty must then be balanced against the social interest served by

equity and fairness or other elements of social welfare.” The balance of these

interests in the proper choice of methods is the hall-mark of judicial process.

If it is the judge’s function to balance the social interests, there must be a standard by

which to check his action. That standard is the same for the judge as it is for the

legislator life itself. In exercising his functions the judge should be guided and

restrained by tradition, the members of his own profession, example of the other

judges, and the spirit of the law. Yet his work within these limits is still creative.

“The law,” Cardozo says, “is not found, but made.” If this remark is taken at face

value, he advocates usurpation of the legislative function. But Cardozo’s view is not

so broad, although he sees an analogy between the functions of judge and legislator.

He notes the development of the analogy in countries where the judicial initiative is

more restricted than in the U.S. drawing on Geny to state the limits of the judicial

function, he quotes the following passage

While the legislator is not hampered by any limitations in the appreciation of a

general situation, which he regulates in a manner altogether abstract, the judge, who

decides in view of particular cases, and with reference to problems absolutely

concrete, ought, in adherence to the spirit of our modern organisation, and in order to

escape the dangers of arbitrary action, to disengage himself, so far as possible,

every influence that is personal or that comes from the particular situation which is

presented to him, and base his judicial decision on elements of an objective nature.

Both in Cardozo’s own remarks and in those he cites as authorities in support of his

view of the judicial process as creative, the need for free decision coupled with an

objective standard stand out clearly.

In affirming the power of the courts to declare law “and within limits the duty, to

make law when none exists,” Cardozo careful to point out that he does not ally

himself with Coke, Blackstone and hale, who held that judges does not legislate, nor

with Austin, Holland, or Gray, who held that there is no reality in law but the

decisions of the courts. Rules of law which are embodied in decisions do not, for

Cardozo, lose their force as law merely because judges overrule them. Rather,

the rules retain their force as law independent of the pronouncement of the judge in a

given case. Thus the creative work of the judge lies in his choice of methods of

selection, the law embodied in the precedent applied has existence apart from its

application by the judge. Concerning natural law Cardozo point out the revival of its

older notion, but observes that it is in a form “profoundly altered.” He expresses no

desire to enter into verbal speculation concerning the problem, but says: “what really

matters is this, that the judge is under a duty, within the limits of his power of

innovation., to maintain a relation between law and morals, between the precedents

of jurisprudence and those of reason and good conscience.” There will be a fuller

discussion of this question of natural law in the writings of Justice Cardozo in this

third chapter of this thesis.

While a legislator operates in the realm of abstract generalization, exercising the

authority to craft laws that are meant to apply broadly and impersonally to a variety

of situations, he does so without the constraints of immediate and concrete

circumstances. His role allows a wide margin for theorizing, for speculating on social

needs, and for framing regulations based on predictions or general understandings of

society. He is free from the burden of deciding a particular case or mediating

individual disputes. In contrast, the judge stands in a different position altogether.

His duty is not to legislate abstractly but to adjudicate real disputes, involving living

individuals and specific factual contexts. Every case that comes before him presents

a unique constellation of circumstances, laden with emotional, moral, and social

implications.

In this context, the role of the judge in a modern legal system demands a deep

commitment to neutrality and objectivity. The judge must strive to rise above

personal biases, preferences, or sympathies that may be evoked by the parties or the

facts of the case. He must avoid being swayed by emotional appeals or particularistic

considerations. To ensure fairness, consistency, and the rule of law, it is essential that

he roots his judgment in principles and standards that are universally applicable and

publicly accessible. This process of judicial reasoning reflects the foundational

values of impartiality and objectivity embedded in our modern legal institutions.

This concept is also illuminated in the writings of Justice Benjamin Cardozo, whose

reflections on the nature of the judicial function underscore both the freedom and

responsibility of judges in shaping the law. Cardozo emphasizes that while judges do

engage in creative legal reasoning—particularly when existing law is silent or

ambiguous—their creativity must always be tempered by adherence to objective

standards. In other words, while a judge may interpret or even extend the law when

necessary, he is not free to act arbitrarily or according to personal whims. The

creative nature of judicial decision-making must always be aligned with the broader

framework of legal reasoning and moral integrity.

Cardozo openly acknowledges the power of courts not only to interpret law but,

under certain circumstances, to declare new legal principles—effectively creating

law where none previously existed. However, he is careful to distinguish his view

from the extremes represented by past legal thinkers. On one end, jurists like Coke,

Blackstone, and Hale insisted that judges merely discovered and applied existing

law, never creating it. On the other end, theorists such as Austin, Holland, and Gray

contended that law has no existence beyond judicial decisions—that law is whatever

the courts say it is. Cardozo carves out a more balanced position: while recognizing

the authority and necessity of judicial creativity, he also maintains that legal rules

possess an existence and authority that is not entirely dependent on the judge's

decision in a specific case.

Even when a judicial precedent is overturned, the original legal principle does not

necessarily lose its value or significance. Rather, it continues to hold a place in the

broader corpus of jurisprudence. The true creative power of the judiciary, Cardozo

argues, lies in the judge’s method of selecting which precedents to follow, how to

interpret them, and how to adapt them to changing social conditions. The law is thus

not a static code but a living system, shaped through careful reasoning and ongoing

dialogue between past decisions and present needs.

Regarding natural law, Cardozo observes a revival of its classical notion, yet he notes

that it has undergone significant transformation in modern times. He avoids engaging

in mere semantic debates or theoretical abstractions. Instead, he focuses on the

practical essence of the issue: the judge must, to the extent that his position permits

innovation, preserve a vital and ethical connection between legal doctrine and moral

reasoning. In other words, judicial decisions should not merely conform to precedent

but also resonate with justice, reason, and good conscience. The interplay between

legal authority and ethical judgment is an essential part of responsible judicial

conduct.

This intricate relationship between natural law, judicial discretion, and legal

precedent will be explored more fully in the third chapter of this thesis, which will

delve deeper into the jurisprudential contributions and philosophy of Justice

Cardozo.

CHAPTER 5

IV Adherence to Precedent. The Subconscious Element in the Judicial Process.

Cardozo then turns his attention to the weight and importance that should be placed

upon precedents. He analyzes a number of cases in the fields of substantive and

adjective law, and sees the need for development in those fields. Although impressed

by the growing discussion as to whether the rule of adherence to precedent ought to

be abandoned, he reasserts his position that adherence to precedent should be the

rule and not the exception. He will not sacrifice stability and symmetry of the legal

order for a number of isolated cases. The change he envisions is by degrees, and not

by a violent reversal of direction in the wake of a more stable policy of adherence to

precedent. In discussing adherence to precedent, Cardozo distinguished between

static and dynamic precedents. The outcome of a case which involves a "static"

precedent is not of great importance; such a case can seldom admit of any decision

but one, and does not affect jurisprudence one way or the other. "Dynamic

precedents," however, are those which when decided will have an effect on

jurisprudence, and will effect as well a development in the law. "These are the

cases," says Cardozo, "where the creative element in the judicial process finds its

opportunities and power." In conclusion, then, in this first work, the Nature of the

Judicial Process, Cardozo elaborates the four methods of judicial decision. Their

importance for understanding his philosophy cannot be overestimated. He placed

stress definitely upon the first and fourth methods, the method of philosophy or logic,

and the method of sociology. The method of philosophy gave to the law certainty

and stability--the symmetry needed

for reasonable predictability. The method of sociology gave room for the exercise of

judgment by the court to mitigate the harshness of strict application of a rule which

would work a hardship. The latter calls for the interstitial legislation of a judge in his

application of precedent to fill the gaps left by the law in certain instances. In his

other writings on the philosophy of law, Cardozo elaborates those principles, giving

more precise expression to his concept of the judicial process.

Justice Benjamin Cardozo, in his seminal work The Nature of the Judicial Process,

dedicates considerable attention to the doctrine of precedent and the significance it

holds within the legal system. He does not take lightly the weight that precedent

carries in ensuring a coherent and orderly development of the law. Rather than

dismissing it as rigid or outdated, he deeply analyzes its function and emphasizes its

necessity in maintaining legal continuity and institutional trust. While exploring

various cases that span across both substantive and procedural (or adjective) law,

Cardozo recognizes that the law must evolve. He acknowledges the growing

scholarly and judicial discourse advocating for a more liberal approach toward

precedent, including suggestions that the binding nature of precedent should be

questioned or even abandoned in certain contexts. However, he firmly reaffirms his

own position: that adherence to precedent must remain the general rule, not the

exception.

For Cardozo, the value of precedent lies in the stability, consistency, and

predictability it brings to legal decision-making. It enables individuals and

institutions to rely upon established legal norms and to organize their conduct

accordingly. To abandon precedent too readily would be to risk undermining the very

foundations of legal order. Though he concedes that legal development is necessary

and even inevitable, he advocates for a gradual evolution—measured reform rather

than radical upheaval. Change, he argues, must proceed incrementally, respecting the

architecture of the legal system rather than disrupting it with sudden and sweeping

departures from established principles. Thus, the transformation of the law should

come not through abrupt reversals, but through a thoughtful and progressive

unfolding over time.

In his discussion on precedents, Cardozo introduces a meaningful distinction

between what he calls "static" and "dynamic" precedents. This distinction helps

illuminate when and how judicial creativity should enter the process. Static

precedents refer to settled legal rules that apply to straightforward, routine matters—

cases where the legal outcome is virtually predetermined and there is little or no

room for interpretative flexibility. These cases are often repetitive in nature and do

not contribute to the evolution of legal thought or doctrine. Because they admit of

only one logical solution, they hold limited jurisprudential significance.

On the other hand, dynamic precedents are those that carry broader implications for

the development of legal principles. These arise in cases where the law is unclear,

conflicted, or must be extended to new and complex social circumstances. Such

precedents shape the trajectory of jurisprudence and offer the judiciary an

opportunity to engage in substantive legal innovation. Cardozo stresses that it is

within these dynamic precedents that the true creative role of the judge is exercised.

It is here that the judge, as interpreter and builder of the law, contributes to the

ongoing refinement and adaptation of legal doctrines to meet the needs of a changing

society. As Cardozo puts it, these are the instances where "the creative element in the

judicial process finds its opportunities and power."

In the closing sections of The Nature of the Judicial Process, Cardozo identifies and

elaborates upon four principal methods that judges use in making decisions. These

four methods are: (1) the method of logic or philosophy, (2) the method of history,

(3) the method of custom, and (4) the method of sociology. Among these, he places

particular emphasis on the first and fourth methods—the philosophical and the

sociological—seeing them as most central to his own judicial philosophy.

The method of philosophy, according to Cardozo, serves to provide the legal system

with rational structure, consistency, and intellectual coherence. It helps to preserve

symmetry and order in the law, ensuring that similar cases are treated in similar ways

and that legal principles maintain internal logic. This method fosters stability and

predictability, qualities that are essential in any mature legal system.

Conversely, the method of sociology offers flexibility and sensitivity to the social

realities and consequences of legal decisions. It allows judges to consider the broader

impact of their rulings and to adapt legal rules where their strict application might

cause injustice or hardship. This method opens the door to a kind of interstitial

lawmaking—what Cardozo calls the "interstitial legislation" of judges—where

judicial interpretation helps to fill the gaps left by legislative silence or ambiguity. It

acknowledges that no legal code can anticipate every possible scenario and that

judges, in interpreting and applying precedent, sometimes must exercise a creative

function to meet the demands of fairness and justice in individual cases.

Cardozo’s approach is therefore neither strictly formalistic nor wholly pragmatic. He

proposes a balanced judicial philosophy that integrates reason with conscience,

tradition with progress, and legal authority with moral responsibility. In his later

writings, he refines and elaborates these principles, providing further insight into his

nuanced understanding of the judicial role. His work remains a cornerstone in legal

philosophy, offering a compelling vision of how judges can maintain fidelity to the

law while still guiding its growth in response to evolving social needs.

CHAPTER 6

THE CENTERS IN THE NATURE OF THE JUDICIAL PROCESS.

Truth

One can locate it in Cardozo’s exposition of the first of his four forces-the method of

philosophy. He believes the merit of this method lies in governing the “affairs of men

with the serene and impartial uniformity which is of the essence of the idea of law”

and it will help shape “great and shining truths” from the “sordid controversy of the

litigants”. The strong belief that there are singular truths which all knowledge should

strive for is one of the most fundamental traits of the Modern. Cardozo does not

introduce this concept into legal discourses but he does indirectly make a case for it.

However, he refuses to engage with the contours of this truth, and thereby sidesteps

one of the most contested spaces within the modern. The major ideological battles

within the modern have been fought for the control of the terrain called truth. Often

these claims were made on the basis of the “rational” or the “scientific”, which were

acknowledged as the only possible way to reach the “truth”. For example, Lenins

much quoted claim for maxims is a classic example of such a technique- “ Marxism

is true, because it is scientific” Cardozo, though ideologically far removed from lenin,

shares this fascination for truth and also believes in the qualities that the path should

have- order, uniformity. It is highly problematic to claim one singular truth, since it

is subsequently likely to become the site of major operation of power. Power seeks to

enforce its own version of truth and in the process silences the various other “truth”.

So when power imposes the “truth” that “heterosexuality is natural “,

homosexuals

become “unnatural” and therefore “criminal”. This insensivity to the order is not

uncommon in Cardozo’s work.

Logic

The second center which Cardozo engages in is a center common to most post-

enlightement philosophical discources-logic. Aware of the realist argument, Cardozo

first acknowledges that a perfect logical consistency in judicial decisions is

something that is rare in practice. Nevertheless, he strongly argues for the need for

logic in the judicial process and the inherent good that is associated with a logical

approach in litigation. He argues that if there are “inconsistencies”, then history,

custom or sociology (the other forces) may step in, but in case of a perfect legal

problem, logic must be adhered to.

Thereafter, he establishes a link between logic and impartiality. He assumes, like

many other modernist scholars, that a logical analysis and solution to a problem is

essentially impartial and unbiased.

Uniformity

One particular sentence of Cardozo’s says that the lack of uniformity may “raise a

feeling of resentment in my (litigants) breast”. The phrase of Cardozo’s regarding the

resentment arising out of the non-uniformity of justice also illustrates the particular

historical context in which Cardozo operated. Cardozo served as a judge in a nation

which purported to function on liberal capicities principles. Due to the rather short

remembered history of the white American man, he never had to deal with the

feudal

structure of justice delivery. In a feudal judicial process, justicedelivery is not

uniform but personal and tangible. An Indian scholar has to deal with this sort of a

judicial process not only because this was a prevalent feature of the present for a vast

number of Indians. In india, justice delivery does not end with the high court’s and

the Supreme Court but extends to the Panchayats and gram Sabhas where village

elders dispense justice. Such personalised and tangible justice is often more valued

than the impersonal and uniform kind handed out by courts. Therefore, unlike

Cardozo, it is not easy for an Indian scholar to claim that the lack of such qualities

would lead to resentment in the mind of the justice seekers.

The “Mores” of the Day.

On the method of sociology, which later scholars have termed the greatest of his four

methods in terms of its impacts, Cardozo’s belief was that “the final cause of law

is the welfare of society.” And he hoped that judges would always strive to shape the

law in such a way as to promote “the welfare of society” acting within the limits

imposed by the constitution and with respect for precedent, traditions and history. At

this early, the technique contemplated is a rather vague expression of a noble

intention. Cardozo stated that there may be occasions when the mores of the day may

conflict with the personal views and morals of the judges. His solution was simple.

He felt that in the event of a conflict, the mores of the community must prevail. “a

judge, I think would err if he were to impose upon the community as a rule of his

life his own ideosyncrasies of conduct or belief” he elaborated that a judge is “under

a duty to conform to the accepted standards of the community”. This, however, is

to beg the

question- how does one ascertain the accepted standards of the community? One is

inclined to believe that Cardozo was talking of a majoritarian principle, whereby the

morals of the majority are those which the judge should follow.

The problem of the mores of the day is heightened in the Indian Context where the

judges sometimes do not share class consciousness as the majority of the population

and therefore often have a drastically different set of moral and ethical values from

that of the majority. The ,mores of the day then end up becoming the mores of certain

educated elites who have come to control power in post-colonial India. At the risk of

generalisation, one could easily point to the example of environmental litigations in

India to bear out the arguments. Judges have often been sympathetic to environment

causes 9like automobile pollution) which trouble the urban middle class (with whom

the judges often share a consciousness rather than those which are important to the

rural poor. Cardozo brushed this issue aside by saying that the different moralities of

the different judges would cancel each other out.20

20 http://www.manupatra.co.in/newsline/articles/Upload/A149DB6F-9D09-4B63-

B963- D493286739D5.pdf

CHAPTER 7 CONCLUSION

Judicial process is a method of free decision or –librem recherche scientifigue" as it

was called by Frangois Geny. This free decision is the common-law as interpreted

by a judge in a case where statute or constitution are silent and precedent absent. In

this sense, free decision fills the gap in the Scriptum, but it is balanced by stare

decisis as at least an everyday working rule. Free decision also gives a partial

explanation of the phrase "judge-made law." For the judicial process is more than a

description of the merely static, imitative and administrative function of the judge

applying an existing rule or principle to a case before him for decision. Secondly,

judicial process is both science and art. The judge must first turn to statutes and

precedents to extract the underlying principle, the ratio decidendi then he must

determine the path or direction along which the principle is to move or develop. As

the extraction of the underlying principle or rule implies a science, the application

of that principle to a case implies an art. Although Cardozo's emphasis is on the

latter of the two aspects of judicial process, his concept of the whole process

involved both elements of science and art. Thirdly, judicial process is a methodology

for applying the princip1e or rule of law to a case to be decided according to one or

more of the four methods: the method of philosophy or Logic, the method of history,

the method of custom, and the method of sociology. The emphasis here is placed on

the fact that judicial process is a method; in other words, Cardozo’s view of the

judicial process was radically structural rather

than contextual both in its origin and development. This concept of judicial process

as a methodology greatly influenced his notion on the question of natural law or the

meaning and genesis of law. For Cardozo s almost exclusive concern with

method undoubtedly influenced his decision to leave the more basic and

fundamental questions of natural or moral law to "the statesman and the

moralist." ,Fourthly, judicial process insures to law in general a high moral content.

Cardozo freely admits that the judge must be objective in rendering his decisions.

There must be no mark or trace of personal. Whim or caprice. This does not mean,

however, that the judge is powerless to raise the level of the prevailing standard

of conduct. And though the judge must be controlled by an objective standard, he

should not be forbidden to take the initiative when either failure to act or resort to the

legislature would leave the threatened wrong un remedied or unchecked. This

concern tor insuring a high moral content in law will be treated more specifically

when we treat his notion of legal justice. Fifthly, judicial process balances the use

of the four methods of decision in such a way as to serve the social interests. The

standard by which this balance is achieved is the same for the Judge as for the

legislator--life itself. In other words, the Judge should be guided or restrained by

such things as the example Of other judges, the spirit of law, and the examples of

the members Of his own profession. Yet with all this as a guide the judicial

Process is still creative, since creation consists in applying principles and rules

of law or in choosing the method for applying these things; this means that law

has an existence apart from its application by the judge. Here again the

methodology of Cardozo shows the structural rather than the contextual approach

to the question of law in the judicial process. Sixthly, Judicial,

process looks to social. welfare as an end to measure the effectiveness of law.

The four methods of decision are not ends in themselves but means to the end of

securing social welfare. Social welfare is measured by a judge s experience of life,

his understanding of the prevailing canons of justice and morality, and his study' of

the social science. But for a given case, in default of objective standards furnished by

the social sciences, the judge must be guided by his own set of values. In this

Cardozo differs from those positivists who would maintain that in the absence of an

objective standard determined by the legislature the judge is not free to decide a case

using his own set of values. Seventhly, judicial process is an indispensable agency

of growth for law. Hough Cardozo admits that the majority of law does and must

come from the legislature, he denies that the legislature is a sufficient agency for the

growth of law. Central to this notion is his insistence that the actual work of

legislating occupies only part of the time for those members of our government who

act in the legislative branch. While the judiciary devotes full time to the work of

deciding cases and diapens1.nc justice. The creative action of judicial process is, for

Cardozo, a necessary principle of growth for law. Eighthly. judicial process insures

legal justice which is "so much of morality as the thought end practice of a. given

epoch shall conceive to be appropriately invested with a legal sanction, and thereby

marked off from morality in general." In other words, Cardozo’s concept of the

judicial process would have this process translate a moral norm to a Jural norm. With

this, duties formerly considered only as moral, may be translated into law and

invested with the sanction of the power of society. While Cardozo agrees that the

legislature can take steps to insure legal justice, he would maintain that legal

justice cannot be attained

without the aid of judicial process. ninthly, judicial process operates on a hierarchy

values. In cases where there are conflicting interests, the judge should prefer moral to

economic interests, and economic to aesthetic interests. These values are to be read

in the social mind--a phrase sufficiently vague to resist telling definition--but in the

event that the legislature has furnished no guide for the appraisal of values, and the

judge is unable to read the social mind, the judge is then to turn within himself to

determine these values.. It is in this instance that the judge is to be guided by the

hierarchy of values of the judicial process. Finally. Judicial process must work

closely with legislative process. This cooperation between legislature and judiciary

Was Cardozo's dream at the beginning of his career as a judge; and it furnished him

with a topic for discourse on more than one of his. Frequent speaking engagements.

Indeed, he advocated and promoted a plan for a ministry of justice that coordinated

the work of the the judicial and legislative branches of the government of New York

State. In his opinion. once a statute has been framed it must. if,: its effectiveness

curtailed, be sufficient general to be applicable in many instances. It is then for the

court to determine in conjunction with the legislature, when a given case falls within

the purview of a statutory provision. Judicial process must, therefore, insure a close

rapport with the legislative branch it the work of either is to be effective. It

seems clear that Cardozo'. Contribution to the field to legal philosopher must be

measured in terms of his work on the concept of judicial process. This limitation was

urged by Cardozo himself, and most of the evaluations of his work have been made

in these terms. Certain writers however, have not been content to limit their criticism

to Cardozo's expressed purpose. Some would value his work by' Judging his

writings &

as an attempt to state a strict and complete philosophy of law. This is to misinterpret

his purpose. In the last analysis, Cardozo was a jurist and a judge not a philosopher.

It is true that he stressed the need for a philosophy as an aid to define the ends of

law and to govern its Application and growth. But his aim was to examine only one

process to which the name "law" could be applied. It see possible therefore, to

separate what he has done on method from the technical Implication and

consequence of his writings when this work is viewed as an attempted philosophical

analyses of the entire field.

The judicial process is a multifaceted mechanism that encompasses various

dimensions of legal interpretation and application. François Gény introduced the

concept of "libre recherche scientifique," or free scientific research, emphasizing the

necessity for judges to exercise free decision-making in instances where statutory or

constitutional directives are absent, and precedents do not exist. This approach

allows the judiciary to address gaps in written law, ensuring that justice is served

even in the absence of explicit legislative guidance.

However, this discretionary power is counterbalanced by the doctrine of stare

decisis, which mandates adherence to established precedents, providing consistency

and predictability in legal rulings. The interplay between free decision-making and

stare decisis offers insight into the term "judge-made law," highlighting the dynamic

role of judges not merely as enforcers of existing statutes but as active participants in

the evolution of legal principles.

Benjamin N. Cardozo, in his seminal work The Nature of the Judicial Process

(1921), articulated that the judicial process embodies both scientific and artistic

elements. Judges engage in a scientific endeavor when they analyze statutes and

precedents to extract underlying principles, known as ratio decidendi. Concurrently,

they perform an artful task by determining the trajectory along which these principles

should evolve to remain relevant in a changing society. Cardozo emphasized that

while the extraction of legal principles is rooted in science, their application requires

artistic judgment.

Cardozo identified four primary methods that judges employ in decision-making: the

method of philosophy or logic, the method of history, the method of custom, and the

method of sociology. The philosophical method involves logical reasoning to extend

legal principles consistently. The historical method delves into the origins and

evolution of legal statutes. The customary method considers prevailing societal

customs as indicators of community values and expectations. The sociological

method evaluates the broader societal implications of legal decisions, ensuring that

the law serves the welfare of society. Cardozo asserted that these methods are not

isolated but often intersect, requiring judges to balance them to achieve justice.

Moreover, Cardozo posited that the judicial process inherently carries a moral

dimension. Judges are expected to maintain objectivity, free from personal biases or

whims. Nevertheless, they possess the capacity to elevate societal standards by

proactively addressing injustices, especially when legislative bodies have yet to act.

This proactive stance underscores the judiciary's role in integrating moral

considerations into legal frameworks, thereby transforming moral duties into legally

enforceable obligations.

The balance achieved through the judicial process serves the overarching goal of

social welfare. Cardozo emphasized that the effectiveness of law is measured by its

impact on societal well-being. In situations where objective standards are lacking,

judges may rely on their understanding of justice, morality, and social sciences to

guide their decisions. This perspective distinguishes Cardozo from strict positivists

who argue that, absent explicit legislative standards, judges should refrain from

inferring their own values.

Furthermore, Cardozo recognized the judicial process as an essential mechanism for

the evolution and growth of law. While acknowledging the legislature as the primary

source of law, he contended that the judiciary plays a crucial role in its development.

Given that legislators often juggle multiple responsibilities, judges, through their

dedicated focus on adjudication, contribute significantly to the continuous refinement

and adaptation of legal principles.

In addition to fostering legal growth, the judicial process ensures the realization of

legal justice, which Cardozo defined as the embodiment of moral principles deemed

appropriate for legal enforcement by society. Through judicial decisions, moral

norms can be elevated to legal mandates, thereby granting them societal sanction and

enforceability.

Cardozo also highlighted that the judicial process operates within a hierarchy of

values. In resolving conflicts, judges are encouraged to prioritize moral interests over

economic ones and economic interests over aesthetic considerations. In the absence

of legislative guidance or clear societal consensus, judges may resort to their own

value judgments, guided by this hierarchical framework

Finally, Cardozo advocated for a collaborative relationship between the judiciary and

the legislature. He envisioned a synergistic partnership wherein both branches work

in concert to ensure that statutes are effectively framed and applied. This cooperation

was exemplified in his proposal for a ministry of justice aimed at harmonizing the

efforts of both branches within New York State's government. Cardozo believed that

such collaboration is vital for the coherent and effective functioning of the legal

system.

In essence, Cardozo's contributions to legal philosophy, particularly his elucidation

of the judicial process, underscore the intricate balance between adhering to

established legal frameworks and adapting to societal changes. His insights continue

to resonate, offering valuable perspectives on the dynamic interplay between law,

morality, and societal welfare.

BIBLIOGRAPHY

1. Benjamin N. Cardozo, the nature of the judicial process, universal Law publishing

co. Pvt.Ltd.

WEBSITES

1. http://journaloflaw.us/4%20Chapter%20One/1-1/JoL1-2,%20CO1-

1,%20Cardozo.pdf

2. http://www.manupatra.co.in/newsline/articles/Upload/A149DB6F-9D09- 4B63-

B963-D493286739D5.pdf

3. en.wikipedia.org/wiki/Benjamin_N._Cardozo

4. 1http://universityoftexasatdallascomets.com/~mjleaf/Cardozo%20Handout.pdf