This paper examines Benjamin Cardozo’s philosophy of law, specifically his ideas about the nature of judicial decision-making. The paper responds to Cardozo’s work i.e. “The nature of judicial process” specifically Lecture-I(Methodology of Philosophy) of the book. In the first section, the paper presents a brief account of Cardozo’s theory on the process that judges go through while deciding cases and attempts to locate Cardozo within a school of thought. Then the paper defends Cardozo’s theory from the issues posed by realists and formalists. The paper then offers a critical analysis of Cardozo’s argument on his proposed factors that need to be taken into account in the process of judicial decision-making.
The author argues that it generally agrees with Cardozo’s theory. However, the author disagrees with one of Cardozo’s arguments that overlooks the influence of judge’s biases in certain aspects of the judicial process.
Summary of Cardozo’s argument
In the book “The nature of judicial process”, Cardozo is interested in exploring how judges decide cases and what sources the judge refers to while deciding hard cases.
In Lecture-1, Cardozo starts by discussing that the job of deciding a case cannot be purely objective, in the sense that judges like any other humans are subject to prejudices or subconscious biases and he says that it is through these subconscious forces that judges decide cases. Then Cardozo explores the question of where does the judge find the law that he applies in his judgment? In answering this question, he talks about the type of cases that are put forth to a judge. First, is the simple case that involves the plain application of the letter of the law. Where the judge just applies the law. He adds that this fact does not make the job of the judge a mechanical one because there are gaps to be filled and ambiguities to be mitigated. He says in difficult cases one must look at precedents as the guiding principles to decide a case. While looking at precedents the judge examines and compares them if they match perfectly with the facts of a given case and just applies the precedent(Stare decisis).
The real problem arises when there is no decisive precedent on a given subject matter it is then the real job of the judge begins. Cardozo says that judges can deviate from the precedent in certain cases provided there are sufficient reasons. To decide such cases Cardozo proposes certain directive forces/factors that judges can rely on. These forces are philosophy/analogy, history, tradition/custom, and sociology. The directive force of logical progression/rule of analogy is most preferred because it has the primacy of natural, orderly and logical succession. He also tells that this factor is not all binding and judges can deviate from this provided sufficient reason is present. He says this because people who prefer symmetry and logic in the law are troubled when the line of division becomes blurry. He ends the chapter by making a case that judges can be given more liberty while deciding cases. At the same time yearning for consistency, certainty and uniformity in the application of the law.
Situating Cardozo within a school of thought:
A balancing act
In the jurisprudence of judicial decision-making, there are two prominent schools of thought, one is Formalism where judges always decide on the rule of law be it statutes or precedents. The other is Realism which is critical of formalism wherein it says that judges decide cases not on the rule of law or precedents but on their personal biases and beliefs.
It is hard to locate Cardozo’s philosophy as a completely formalist or a realist because the conception of realism has changed over time and Cardozo’s arguments are inclined towards judicial restraint and rule of law but he also makes the claim that judges need to be given liberty in hard cases to use their discretion. So, this seems that he is creating a middle path in the field of philosophy of judicial decision-making. His theory can be located as broadly as realist, but it also incorporates formalistic elements.
He is inclined more towards Realism when he says that the rules and principles of case law are not final truths and that they are working hypotheses and subject to change when a certain result is felt to be unjust. He denies the conception of strict formalists by saying that the job of the judge is not just mechanical. He is arguing from a realist perspective and accepting that judge’s prejudices do influence his judgment.
He says that Holmes did not tell us that logic is to be ignored when experience is silent. He argues that unless there is a complying reason like a strong consideration of history, custom or public policy there is no need to deviate from precedents which highlight the formalist kind of an argument. The method of philosophy states that law should develop along the lines of logical progression. He prefers this method because it ensures certainty in the law. This shows he did consider formalism. However, he also acknowledges that upon sufficient reason logic can be substituted by other methods while deciding a case. Considering all this Cardozo’s philosophy can be best understood as a balancing act between judicial liberty and certainty in the law.
Defending Cardozo’s arguments
The author agrees with Cardozo’s attempt to formulate a philosophy which mediates between conflicting claims of certainty, impartiality, stability and growth and development of law. The challenge that realist pose is that they argue that judges decide the case on the merits without looking at the precedent or established principle. They do not agree with the idea of deciding a case to begin with some principle or precedent. They say that in reality, judges do not decide cases on some principle but on some “judicial hunch”. This means that they decide on the end first and then find means/reasoning to support that end. A realist jurist Haines lay down factors which affect the judge’s opinion in that he does not consider logic or established legal principles as factors in the judicial decision-making process. Realists say that judicial decisions are based on rule of law but rather on the judge’s personality and external factors. Cardozo rejects the realist’s conception on intuitive hunches are central to the decision-making process. Cardozo’s theory contends that hunch does influence the application of law but primarily, the rule of law i.e., statutes and precedents is the central one while judges decide cases because most of the cases are simple and clear and involve straightforward application of the law.
Impartiality and symmetry
A formalist would say that the application of law should be impartial as it is critical to the legitimacy of the judicial institution. In Cardozo’s theory his first factor i.e., ‘logic/analogy’ says adherence to precedents is the rule and not the exception. Which ensures the impartial application of the law. Another jurist Laskin agrees with Cardozo in that stability is an invariable factor in the decision-making process. However, he argues that the formalist ideal is an unrealistic oneand that plain application of the law would lead to an absurd result. Hence, he believed that judges need to be given liberty, but it needs to be constrained because permitting judges to take account of all circumstances would lead to the danger of sacrificing impartiality. This conception of ensuring the logical development of law eventually also ensures symmetry in the law which will ensure that when two people with similar issues go to the court they will be judged similarly.
Uncertainty and Judicial discretion
Realists argue that the conception of the role of a judge as an entity who brings forth the law in a sense a mechanical job would result in unjust outcomes. However, formalists argue that allowing judicial discretion would lead to uncertainty in the law. To address the first concern Cardozo agrees and recognizes the fact that judges are persuaded by their beliefs, traditions and prejudices.
To address the second issue Cardozo’s theory rejects the application of pure realist conceptions to his theory because he proposes certain directive force which restricts the judicial discretion of a judge. Specifically, the method of philosophy as per factor, adherence to precedent, as a rule, is itself logical. The fact of analogy/philosophy gives the law certainty, stability and predictability as it requires the judges to decide cases based on precedents. Another jurist Laskin also emphasized the importance of reconciling certainty and creativity. He recognized the influence of the judge’s personal biases on the outcome of a case. He developed constraints to restrict judicial decision-making to balance conflicting grounds of creativity and constraint. Laskin also argues that judges do have creativity but it is controlled creativity, He restricts creativity more than Cardozo does in the sense that there are not as controversial as proposed by Cardozo. In that Laskin does not recognise personal preferences and prejudices as part of judicial discretion. He did not want to place his trust in the training of judges to be impartial and their personal convection to not let their prejudice influence their decisions. Hence, he created an extensive system of constraints to prevent over-indulgence of personal preferences while deciding cases to preserve certainty in the law. Hence, arguing that striking a balance between uncertainty and judicial discretion is important to attain just outcomes.
Development, growth and stability of law
A realist would contend that strict adherence to precedence echoes formalism and that it makes the law static and inhibit the development of the law. Development of law is important as Laskin pointed out that old rules are not versatile enough to deal with the changing times to which Cardozo agrees that there needs to be constant change in the law to suit and meet the requirements of changing times. To address this issue, Cardozo’s theory acknowledges this problem when the philosophy is treated as supreme and final. To resolve this challenge Cardozo allows for reliance on extra-legal materials in cases where the logical inconsistency is not possible based on sufficient reasons. His proposal of factors like history, tradition and sociology allows for the growth of the law. His theory does not succumb to the formalist criticism that these three driving forces bring with them ambiguity and uncertainty, because the theory only recognizes community standards and not individual standards while choosing one of the three factors also these extra-legal sources can be used only if the welfare of society is in jeopardy.
The development of law should not result in judges entering the realm of policy-making otherwise stability of law cannot be achieved. Pond argues that judges need to be given the liberty to use their discretion while deciding cases in a way to allow the development of law. However, this law-making function of the judge is limited by principles. It is important to maintain this distinction to not obstruct the development of law. This explains that courts are governed by principle and not by policy considerations. Both Laskin and Cardozo recognized the issue of over-involvement of judges which may result in the entry into the public policy domain which is the legislature’s domain. Hence, they placed constraints such that the judge considers past cases first and analyse them to be consistent with other principles. This helps in ensuring that restrict judicial control over the law.
Criticism of Cardozo’s theory
Cardozo’s attempt to prevent uncertainty in the law, to the extent possible, may have been overlooked in one of his arguments. When Cardozo says that there is a constant need to separate the non-essential from the essential(ratio decidendi) while analysing a precedent. He says that let us assume that this process has been done accurately and skilfully. Cardozo does not explain this process of culling out essential parts from a precedent. He takes it for granted that the interpretation of a precedent is certain and uncontroversial. which is not true. The interpretation of a precedent is also subject to a judge’s perception.
A realist would say that a single judge’s perception of the facts/ratio may be different from other judges as judges are humans and prone to faulty mistakes because the facts and law are not fixed entities and they are vulnerable to different interpretations by different people. Pound’s theory also attests to this fact. It is argued that in hard cases, the individual conceptions of judges would influence the process of choosing the relevant facts/ratio from a precedent and that it would differ from judge to judge. Salience theorists also argue that judges pick aspects of precedents that favour them hence, making the process subject to the judge’s perception. They contend that the process of application of precedent is vulnerable to salience because certain aspects of a precedent or a principle which stand out to the judges and as a result influences his judicial decision. This goes against what Cardozo is trying to argue, and it is problematic because this overlooking by Cardozo may lead to inconsistency in the application of the law because the judges can fashion their judgment by carefully picking certain aspects of a precedent which favour them. Moreover, this does not tie in which Cardozo’s larger argument restricting the judicial discretion of judges and preserving certainty in the law.
This paper analysed the philosophy of Cardozo. Initially, the paper gave a summary of Lecture 1 of “The Nature of Judicial Process”. After that, we located Cardozo’s philosophy as striking a middle ground between formalism and realism. Then we delved into the analysis of the challenges from both formalist and realist perspectives to Cardozo’s theory and make the best case for the theory. Then the paper offers a brief criticism of Cardozo’s argument on the process of finding the ratio of a precedent as being certain. To conclude, Cardozo’s philosophy strikes the perfect balance between preserving stability and impartiality and the growth/development of law while ensuring that the welfare of society.
 Benjamin N. Cardozo, ‘The Nature of the Judicial Process’ (Yale University Press, 1921).< http://xroads.virginia.edu/~Hyper/CARDOZO/CarNat.html>
 ibid 20.
 ibid 30-31.
 ibid 44.
 Timothy J. Capurso, ‘How Judges Judge: Theories on Judicial Decision Making,’ (University of Baltimore Law Forum 1998) 1-2. <https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1909&context=lf>
 Cardozo (n 1) 33.
 Capurso (n 5) 1-2.
 Capurso (n 5) 3.
 Carol J. Ormond, ‘Justice Cardozo: A Mediator of Jurisprudential Thought in the 1920’s and 1930’s’ (Cooley Law Review, 1984) 153. < https://heinonline.org/HOL/LandingPage?handle=hein.journals/tmclr2&div=17&id=&page=>
Ormond (n 9) 149.
 Denise Reaume, ‘The Judicial Philosophy of Bora Laskin’ (University of Toronto Press, 1985) 448. < https://www.jstor.org/stable/825537>
 Reaume (n 11) 443.
 Reaume (n 11) 439.
 Cardozo (n 1) p.30.
 Ormond (n 9) 151.
 Roscoe Pound, ‘Theory of Judicial Decision’ ( Canadian Bar Review, 1924) 11. < https://advocatetanmoy.com/2020/10/20/theory-of-judicial-decision-roscoe-pound-1924/ >
 Reaume (n 11) 455.
 Cardozo (n 1) 30.
 Capurso, (n 5) 7.
 Pedro Bordalo, ‘Salience theory of Judicial Decisions’ (Journal of legal studies 2015) 30-31. < https://scholar.harvard.edu/files/shleifer/files/salience-and-law_feb15_2_0.pdf >
ABOUT THE AUTHOR
Sourav is a second-year student pursuing B A LLB (HONS.) at the National Law School of India University Banglore. He has a keen interest in Legal philosophy and Constitutional law.
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