Commentary Magazine

Selected Writings of Benjamin Nathan Cardozo, Edited by Margaret E. Hall

Liberal Justice
Selected Writings Of Benjamin Nathan Cardozo.
by Margaret E. Hall.
New York, Fallon Publications, 1947. 456 pp. $5.00.


During the last several decades this country has witnessed the growth of a worship of great judges that has, at times, taken on the proportions of a cult. The group surrounding and succeeding Justice Oliver Wendell Holmes have become the church fathers of inarticulate liberals; their writings have become sacred books. At the same time that the cult of the great judge has been developing, a growing disrespect for the idea and institutions of law has flourished. It is toward an understanding of this paradox that Margaret E. Hall’s handy collection of the extra-judicial utterances of Justice Cardozo makes its contribution.

From this point of view Cardozo’s writings have a special significance. The other “liberal” justices would have been remembered had they never sat on the bench: Holmes was a notable historian, Brandeis a practitioner and man of affairs, Frankfurter (assuming that he may be included as a “liberal”) a councillor of state. But Cardozo’s career was that of the judge pure and simple; and he is often considered the most reflective and most articulate of the group.

Since this volume contains none of Justice Cardozo’s judicial opinions, it is of course an unfair sample of his writing. His decisions in torts, criminal law, and constitutional law are among the wisest and most closely reasoned in American legal reports. Yet in one way at least the omission of his judicial opinions makes Miss Hall’s collection the more illuminating. Here is Justice Cardozo’s philosophy of law. In this book we see the separation of his principles of social philosophy from his decision of specific legal cases. The pragmatic school, of which Cardozo is a member, has usually argued the impossibility of separating the theory from the practice of judicial decision. But this does not exempt the pragmatic school from judgment as legal philosophers. The non-judicial writings of judges—like those selected in this volume—are those most widely read by laymen. It is often through these writings that a judge’s ideas and assumptions become part of the life and thought of the community.

Now, about a quarter-century after the first publication of Justice Cardozo’s main essays on jurisprudence, they seem inadequate as a foundation for legal philosophy. One cannot fail to be impressed by the seriousness—the solemnity, even—of their tone. But they are actually a sociology of the judicial process which holds itself out as a philosophy of law; and the one will not do for the other.



Cardozo’s principal concern, in such works as “The Nature of the Judicial Process” and “The Growth of the Law” which are included in this volume, is to explain how the judge shapes legal doctrine to whatever ends he has chosen. With a felicity of phrase and an aptness in the choice of examples, though in a style often mannered and diluted, Cardozo tells us the methods of reasoning available to the judge according to the accepted rules of his profession. He describes the consequences ensuing for the law, from an emphasis on precedent or tradition, on logic or doctrinal symmetry, or on economics. He explains in a balanced and mellow fashion why the judge is not an automaton. More convincingly than do the Marxists, the behaviorists, and the neo-and pseudo-Freudians, he explains how the statement of the law is affected by what the judge is and feels as well as by what he knows.

Such an emphasis helped bring to an end an era when the highest courts had too often confused the prejudices of an economic aristocracy with moral and legal absolutes. But, measured even by this purpose, Cardozo’s essays lack the subtlety or brilliance found in the writings of William James and Justice Holmes; and they seldom rise above the limitations of their time and place.

Again and again he emphasizes the role of the judge as the servant of social flux. “The good of one generation,” Cardozo remarks, “is not always the good of its successor. For the lawyer as for the moralist, the generalizations that result from the study of social phenomena are ‘not fixed rules for deciding doubtful cases, but instrumentalities for their investigation, methods by which the value of past experience is rendered available for present scrutiny of new perplexities.’”



When Cardozo comes to the values to be served by the law, he customarily makes his bow to the needs for stability, predictability, certainty, or commercial convenience, but beyond that he does little more than urge the individual judge to try conscientiously to express the prevalent values of the community: “Read such a book as the Rise of the American Civilization, by Charles and Mary Beard, and see how the surge of social forces has swept aside the little eddies of faction, the currents of party politics, or caught them in its larger movements. Measures the most distinctive and important have taken form in obedience to a pressure that has overwhelmed the lines of sect or party; they are the emanation of a will which has become composite and impersonal. Not less clamorous at times is the summons to the courts to scan the scroll of life and announce their readings to the world.”

The study of values is relegated to a science of “axiology” which is regarded almost tolerantly as a technical exercise of philosophers. Meanwhile the judge is warned to “beware of an axiology that is merely personal and subjective.” “The judge is to give effect in general not to his own scale of values, but to the scale of values revealed to him in his readings of the social mind.” This, according to Cardozo, is apparently the only alternative to an undisciplined subjectivism.

In the last several decades the pragmatic concept of law, which insists that legal rules are primarily, if not exclusively, the servants of short-run social needs, has become increasingly accepted both here and abroad. In practice, this has usually meant putting the concepts and institutions of law in the service of the group controlling the instruments of political power. The most extreme effects of such a practice are underlined dramatically when a fascist or a Soviet régime dissolves law into a mere instrument of policy. Anyone who has observed first-hand the activities of many young New Deal lawyers (who had been educated to believe that pragmatism would do for a philosophy if not for a religion) must be impressed by the cynicism and corrosive relativism bred by an immoderate emphasis on the instrumental aspect of law. Such an emphasis, even in this country, has sometimes come close to making law an instrument by which political parties remain in power.

Yet by now we should be able to see, still more vividly than twenty-five years ago when Cardozo wrote, that the idea of law itself is a fundamental value of our civilization. The inviolability of the individual and the idea of his natural rights and duties are not likely to be buttressed without a firm belief in precepts which transcend current social policy. It is for this reason that we today feel the urgency of a philosophy of law. On the path to such a philosophy the essays of Cardozo shed little light.

This volume, together with what else we know of the great judge, gives us evidence that a sensitive and reflective mind like Cardozo’s cannot help suspect the inadequacy of his own pragmatically-oriented philosophy. He shows this in several ways: in the highly eclectic character of his writing, tending to burden his pages with references to undistinguished and often superfluous “learned” authorities, and to bolster his own observations by cliche quotations from James Russell Lowell, Matthew Arnold, or Charles Lamb; in the stiff and self-conscious style, which often seems to supplant form for content, and which issues again and again in bombast or purple passages: “To the lips of eager youth comes at times the halting doubt whether law in its study and its profession can fill the need for what is highest in the yearnings of the human spirit. Thus challenged, I do not argue. I point the challenger to Holmes.” Or, as he remarks on the common-law oath for grand-jurors: “Like the tones of a mighty bell, these echoing notes of adjuration bring back our straying thoughts to sanctity and service.”



It is disconcerting to see the role of the judge played so perfectly and with so little individual flavor. And doubly so when the reverence which the man inspires lacks its proper counterpart in the outlines of the object to which he has dedicated himself. The judge who calls attention to himself rather than to the law, is like the poet who makes us remark on how poetically he writes. In both cases the artist stands in the way of the object. One has the feeling, as with Holmes—and in both cases perhaps unjustly—of a man of limited human experience and emotional capacity, a limitation which must have been accentuated by long years of judicial decorum and detachment.

It would be hard to imagine a more un-Talmudic mind than that which appears in these pages. Nowhere do we find a sturdy irony or a convincing sense of the inscrutable. Cardozo’s talents and his personal frailties gave him a special need for the resources of a tradition. His essays show that while he felt the magnificence of the common-law tradition, this was for him a technical and professional matter; he was less happy and less secure still in his choice of a philosophic and literary tradition. His commencement address to the graduating rabbis of the Jewish Institute of Religion in 1931 exhorts the graduates to go forth as “preachers of the eternal values.” But the title of his speech is “The Choice of Tycho Brahe,”—taken from a poem by Alfred Noyes which he quotes extensively. It is small wonder that his exhortation should be pallid and unconvincing when his very vocabulary and his allusions show how thoroughly he had abjured the traditional resources closest to him which might have given him a point from which to begin his own philosophizing. He found himself instead drawing on the bathos of his contemporaries. The common law and Anglo-American belles lettres inevitably provided only a partial resource for answering the basic questions of law and life.

If the cult of the judge has flourished among liberals uncertain of their belief, Cardozo’s writings may suggest an explanation: here too was a man better than his philosophy.



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