International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Fall 2017 Issue

In Review:
Books About International Law and About Courts and Judges


The Nature of the Judicial Process

By: Benjamin N. Cardozo
Dover Publications 2005 (an unabridged republication originally published in 1921 by Yale University Press)

The Nature of the Judicial Process

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor

Benjamin N. Cardozo is one of the most famous names among the American judiciary, one of the most distinguished judges in American history, and not just legal history. Some of his decisions had profound impacts on American culture. His name is spoken of at the same levels as John Marshall, Louis Brandeis, Oliver Wendell Holmes, and Learned Hand. He was Chief Judge of the New York Court of Appeals (the highest court in New York State) from 1926 to 1932, serving until he was appointed to the U.S. Supreme Court by President Herbert Hoover that year.

Two of Justice Cardozo’s opinions while sitting on the New York Court of Appeals had a significant impact on the common law of the United States. His opinion  in McPherson vs. Buick Motor Company became the modern law of product liability. And his decision in Palsgraf vs. Long Island R.R. Company established the modern law of causality.

In 1921 Justice Cardozo was invited to deliver a series of lectures , the William L. Storrs Lecture Series, at the Yale Law School. Those lectures were published the same year under the title The Nature of the Judicial Process. This small volume is, or should be, the basic text for all judicial appointees before they begin their service on the bench.

In the Introduction, which relates to ”The Method of Philosophy” Justice Cardozo poses the problem of how a judge would respond to a question about how he or she goes about judging. He outlines how a judge might begin his or her thinking:

What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far should I seek it? At what point should the quest be halted by some discrepant custom, by some consideration of social welfare, by my own or the common standards of justice and morals. Into that strange compound which is brewed daily in the cauldron of the courts, all of these ingredients enter in varying proportions.

In the four lectures that follow, Justice Cardozo answers the questions. He expounds on the issue of how a judge goes about, or should go about,


responding to such an inquiry. In the text he admits that probably most judges do not formally or consciously go through the analytical processes that he describes, but they do go through some of them subconsciously.

The book is not well known amongst the legal profession or among judges in present times. In my 27 years of working with judges, both domestic and foreign, and becoming acquainted with the subject and texts to which they are exposed after their judicial appointments, I have never heard mention of Justice Cardozo’s book even one time. If his book has been ignored, as I expect it has been, that is a real tragedy, because the book offers so much of  enlightenment about the craft of judging, and how judges should go about their work of deciding cases.

In the Introduction, Justice Cardozo offers some general comments about judging under the common law, the differences between constitutional and statutory law, and the role of precedent and stare decisis in the common law.

The justice approaches the judicial process by examining of four approaches to judging: the method of philosophy, the method of history, the method of tradition, and the method of sociology. Each method is examined carefully. Examples are provided to illustrate the validity and usefulness of each method, and how most cases involve the use of more than one method.

In the Conclusion, Justice Cardozo calls the law an “ageless process.” He argues that “we,” meaning himself and his contemporaries, worry too much about the mistakes that might be made in the judicial process. Perhaps one of his methods is consciously or unconsciously used by the judge that produces bad law or an erroneous result. But, he says, the law has a way, over time, of shedding the bad, and retaining what is the good. His actual words are:

Ever in the making, as law is developed through the centuries, is this new faith which silently and steadily effaces our mistakes and our eccentricities. I sometimes think we worry ourselves over much about the enduring consequences of our errors. They make work a little confusion for a time. In the end,  they will be modified and corrected or their teachings ignored. The future takes care of such things. In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.

Justice Cardozo’s words provide comfort to those who are afflicted by the turmoil of the present, and by the present steering of the ship of state off course. The judges of the United States should examine their methods of deciding cases, and use the guides provided by Justice Cardozo in the effort to steer the ship of state back on course.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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