The Nature of the Judicial Process

The Nature of the Judicial Process is a legal classic written by Associate Justice of the United States Supreme Court, and New York Court of Appeals Chief Justice Benjamin N. Cardozo in 1921. It was compiled from The Storrs Lectures delivered at Yale Law School earlier that year. Summary The central question of The Nature of the Judicial Process is how judges should decide cases. Cardozo's answer is that judges should do what they have always done in the Anglo-American legal tradition, namely, follow and apply the law in easy cases, and make new law in hard cases by balancing competing considerations, including the paramount value of social welfare. Cardozo identifies four leading methods of legal analysis: (1) the method of logic (or “analogy,” or “philosophy”), which seeks to extend legal principles in ways that preserve logical consistency; (2) the method of history (or “evolution”), which adverts to the historical origins of the legal rule or concept; (3) the method of custom (or “tradition”), which views social customs as helpful guides to community values and settled expectations; and (4) the method of sociology, which looks to considerations of reason, justice, utility, and social welfare. Each of these methods may have their “preponderating value” in particular cases. No simple test or rigid formula can decide which method should prevail in a given case. But in difficult cases where a legal rule is outmoded or the law contains “gaps” that must be filled, judges should frankly play the role of legislators and let “the welfare of society fix the path.” Cardozo admits that there are risks in judicial lawmaking. To minimize these, he points to a number of factors that significantly limit judicial discretion. First, judges may make new law only “interstitially,” that is, when the law contains gaps or a legal rule is clearly obsolete. Second, judges in their exercise of judicial review should never strike down a law unless it is “so plainly arbitrary and oppressive that right-minded men and women could not reasonably regard” it otherwise. Finally, when judges invoke norms such as “reason,” “justice,” or “social advantage” when employing the method of sociology, they should look to community standards rather than to their own personal values.