The nature of judicial process benjamin cardozo

Benjamin cardozo judicial process

How do judges decide cases? In , Benjamin Cardozo gave a series of lectures at Yale University in which he attempted to answer that question. The lectures were subsequently published under the title The nature of the judicial process. Justice Cardozo was one of the most distinguished judges of the twentieth century. His judgments during that period — the early years of the twentieth century — re-examined basic common law principles in the light of the rapid industrialisation of the United States at the time.

Cardozo was one of that rare breed of judges whose judgments are worth reading as much for the elegance of their style as for the incisiveness of their legal analysis. I sought for certainty. I was oppressed and disheartened when I found that the quest for it was futile. So how do judges make their decisions? In most cases, the law is clear, and what is in dispute is the facts.

In many cases there is a clear precedent.

The final cause of law is the welfare of society

But what if there is not? Then the judge must fashion the law for the litigants before him and, in doing so, he will also be fashioning it for others. His judgment itself is then the source from which new principles may spring. One of the peculiarities of the common law system is that it does not start with universal truths and derive conclusions from them.