Cardozo delivered the Storr Lectures at Yale University in 1921 to explain and formalize the judicial process. He aimed to make explicit what judges implicitly know when deciding cases - that they consider customs, laws, precedents and more. Cardozo argued judges must balance logic and experience when resolving disputes based on precedents. While precedents provide continuity, judges also occasionally "remake the moulds" of precedent to address evolving social needs. Cardozo sought to understand the conscious and subconscious dimensions of legal analysis and make judicial decision-making more transparent.

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BOOK REVIEW
ON THE JUDICIAL PROCESS
Benjamin N. Cardozo (1921). The Nature of the Judicial Process (New Haven and
London: Yale University Press, 1949), pp. 180.
What is the judicial process?
That is the question which Justice Benjamin Nathan Cardozo tried to answer in the
four Storr Lectures that he delivered at Yale University in 1921. In other words, what
Benjamin Cardozo is trying to do in these lectures is to formalize the judicial process.
Cardozo’s main argument is that even though judges decide any number of cases
during their stint on the bench, they may not necessarily have a formal theory of
what they are up to.
The purpose of Benjamin Cardozo’s lectures is to make ‘explicit’ what judges know
implicitly when they go about deciding cases.
The key question for Cardozo then is this: ‘What is it that I do when I decide a case?’
The obvious answer is that Cardozo, like any other judge, is trying to resolve a
dispute between the parties to a case.
That is however easier said than done since it is not clear on what basis disputes
between parties are to be addressed by the judiciary. Some of the criteria that are
relevant could include the following: customs, laws, and precedents.
But which of these should prevail?
The importance of this question relates to the fact that when judges resolve a
dispute, they have to write it up for fellow judges and litigants of the future. That is
every decision will become a precedent which may be cited in the years to come.

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It is therefore important to not only arrive at a decision which will make sense to the
parties to a dispute, but also explain to all those who might be interested as to what
was decided and the reasons for doing so.
Judges will find it easier to go about doing their job if they become conscious of what
they know subconsciously.
That is what is at stake in these Storr Lectures.
Cardozo is trying to make the subconscious dimensions of judicial decision-making
conscious to the legal community.
The fact that judges may not be conscious of what they are doing doesn’t mean that
they contradict themselves.
The coherence of their opinions can be established if the subconscious assumptions
and criteria of evaluation are made known to those who might be interested.
Cardozo’s approach is not only pragmatist in orientation, but also anticipates
Stanley Fish’s claim that the ‘law wishes to maintain a formal existence.’
Making that which is ‘subconscious’ into something that can be consciously
understood by the members of the legal community then is an attempt at
formalization.
Such an attempt, Cardozo believes, will not only improve the quality of decision
making amongst judges but will also address their obligation to give reasons for
their decisions and opinions given that they are public servants.
In this approach to analysis and formalization, what is really required is to first
recognize the difference between the conscious and the subconscious dimensions of
legal analysis and judicial subjectivity.
In Cardozo’s own words, ‘there will be a need to distinguish between the conscious
and the subconscious’ levels of the mind in this attempt at formalization.

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Cardozo also uses the term ‘latent’ in a way that is reminiscent of Sigmund Freud’s
attempt to differentiate between what is ‘manifest’ and what is ‘latent’ in the analysis
of dreams and in his formalization of the dream-work.
So when judges decide, they start by ‘finding’ the law that is relevant to a given
dispute. The law may be found in the constitution, a statute, or in the case law that is
relevant to the dispute.
It may however turn out that the statute or case law does not address the issue at
hand. Or, to put it simply, there could be gaps in the law.
This concept of gaps is important because it serves as the point of entry for judges or
litigants informed by the psychoanalysis of law.
Psychoanalytic jurisprudence is basically an attempt to interrogate the symptomatic
significance of these gaps in terms of political or economic ideology.
It may also be related - as feminists legal scholars have argued - to the patriarchal
assumptions that have not been previously addressed to the detection of a gap in the
relevant case law to a given dispute.
So, in that sense, Cardozo’s approach not only anticipates some of the contemporary
themes in legal pragmatism but also in the psychoanalysis of law.
It is therefore not surprising that many law professors at the Cardozo Law School at
Yeshiva University in New York are given to pursuing critical legal theory that is
informed by the concept of gap analysis in psychoanalytic jurisprudence.
Cardozo’s preoccupation with the function of legal precedents in these lectures is
related to the fact that what he wants to formally represent is the genealogy of
precedents.
In other words, we find that Cardozo’s interest in precedents is not only practical but
also theoretical in its orientation.
What exactly constitutes the genealogy of precedents in the legal unconscious?
The formal genealogy of precedents relates to the following four levels of
presuppositions in the law: they are precedents, conceptions, forms of legal
reasoning, and habits.
This form of dispute resolution involves ‘a process of search, comparison, and little
more’ that is referred to as stare decisis in legal theory.
It is however a lot more difficult to do in practice than it might appear here since this
model is only applicable if gaps do not emerge in the case law.

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The problem is that gaps appear often enough.
This is the point at which judges ‘make’ law rather than apply pre-existing law to a
dispute. So invoking precedents is not about having the best ‘card index of cases.’
There is a lot more to it especially when there is no ‘decisive precedent’ that can be
applied in a given dispute.
That is also why common-law judges cannot seek recourse to a pre-determined code
(with minimal or no gaps); they have to work on a ‘case-by-case’ basis with all the
effort that is involved in doing so if they want to resolve a case.
Another problem with precedents is that the dissenting opinion of a previous era can
become the law of the next generation.
So precedents can’t be applied in any given dispute without some element of
discretion for which judges must take responsibility. As Cardozo himself puts it,
‘most judges are inclined to say that what was once thought to be the exception is
the rule, and what was the rule is the exception’ now.
Furthermore, each case is subject to interpretation - ‘they yield up their kernel slowly
and painfully.’ That is why the relationship between logic and experience is
important in the context of invoking precedents.
In the common-law most cases are decided, as Justice Oliver Wendell Holmes Jr.
taught us, on the basis of the experience of previous cases.
But, at the same time, they are not to be decided on an arbitrary basis. As Cardozo
points out, ‘Holmes did not tell us that logic is to be ignored when experience is
silent.’
Every judge then must ponder on the ‘trade-off’ between logic and experience in any
act of dispute resolution in the courts.
It is the doctrine of precedents then that ensures continuity in the legal system. That is why
it is worth our while to make sense of the forms of stare decisis as a legal doctrine.

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When Cardozo broached this topic it was still fresh for his listeners, but this is an
area that has subsequently generated a huge amount of legal scholarship.
Cardozo is interested in the contexts of legal resolution because history, tradition,
and sociology have a lot to teach us about legal interpretation.
So, for instance, it does not make any sense to understand land law as a logical
construct; it is historical in its orientation through and through given its origins in
the English law of feudal tenures; hence, Justice Holmes’s contention that ‘a page of
history is worth a volume of logic.’
That is the case with the law of contract as well; the basic assumptions and concepts
are imbued with its origins in history. Likewise, the conflict between law and custom
in the common-law is difficult to understand without an adequate knowledge of
English law.
The importance of sociology is related to the fact that the ‘fissures in the common
law’ are usually more than in the case of legislative statutes.
How should judges fill in these gaps?
It is important to remember that judges are under pressure to fill in these gaps by
invoking the notion of ‘social welfare.’
Cardozo also differentiates between the interpretation of the constitution and the
interpretation of statutes.
The former is full of broad generalities; while the latter is often full of gaps since no
legislature can anticipate the full range of contingencies that will affect the
applications of a statute in everyday life.
While constitutional interpretation gets a lot more attention, there are interesting
theoretical and practical problems in statutory interpretation as well.
So, for instance, are statutes mainly ‘texts’ to be interpreted in terms of legislative
intent? Or, should they be interpreted in terms of contexts and consequences?
The role played by sociology, and sociological forms of reasoning, has been to move
legal interpretation from a preoccupation with the ‘law’ as such to focusing on the
‘facts’ of the case (i.e. consequences of the law).
This is illustrated most famously by the part played by the ‘Brandeis brief’ as a form
of legal reasoning in Brown v Board of Education (1954) that de-segregated public-
school education in the United States.

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In these forms of legal resolution, what are important are the unintended
consequences of the segregationist doctrine of ‘equal but separate’ that characterized
the Supreme Court’s decision in Plessy v Ferguson (1896).
In the absence of the ‘Brandeis brief,’ which was pioneered years ago by Louis D.
Brandeis, it would not have been possible to explain the unintended consequences of the
Plessy approach to the Supreme Court.
That then is the basic difference between focusing on the law as such and thinking
through its intended and unintended consequences in specific socio-economic
contexts as legal pragmatists and reformers do.
If the sociological approach to legal reasoning had not been allowed by the Earl
Warren Supreme Court, then, the unhealthy precedent of Plessy would have
determined the decision in the Brown case as well.
So, in instances like this, when the Supreme Court steps in as a legislator; and even,
if required, as the enforcer of the revised law (as demonstrated by the ruckus around
the ‘school-busing’ cases in the wake of the Brown decision), the transition to a
sociological approach to jurisprudence would not have been possible if the basic
assumptions of the precedent had not been put into question.
That is why it is important to understand the legislative function of judge-made law
in response to the gaps in statutory law or in revising the scope of the ‘due process’
clause of the Fourteenth Amendment to the Constitution of the United States.
When judges fill in such gaps, they need to identify the relevant sources from which
they are doing so; these sources could include law from other jurisdictions like
Roman law or comparative constitutional law.

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The history of jurisprudence itself has swung from arguing that judges have no
legislative function at all to arguing that is all that they really (want to) do.
Benjamin Cardozo’s position in 1921 (and, needless to say, this is pre-Brown) is to
argue that while precedents are necessary, they are not sufficient. When required, he
argues, ‘we must remake the moulds’ of precedent to address the contemporary
needs and evolving moral standards of society.
Failing to do so would be tantamount to making a ‘fetish’ of a precedent; that is why
legal pragmatists argue that we must think in terms of both intended and unintended
consequences of statutory legislation.
Thinking of ‘legislative intent’ makes sense only in terms of intended consequences
and does not make sense for the unintended consequences.
It therefore makes more sense to think through the consequences of legislation using
the information available in a ‘Brandeis brief’ type of document rather than
endlessly explore or speculate on legislative intent (given that the circumstances
now may be different from when a piece of legislation was drafted years ago).
That is why statutory law is not reducible to an exhaustive list of ‘rules,’ but must
provide judges with the ‘discretion’ necessary to intervene in their attempts to
resolve disputes and ensure that justice is done in a given case.
The needless controversies in this area of statutory interpretation and judge-made
law stems from not knowing the difference between ‘resolving’ a gap in the statute
and ‘dissolving’ the statute.
Judges are not being allowed to fill in the gaps in case law or in acts of statutory
interpretation out of fear that they will re-write the entire statute. It is not commonly
known that statutory interpretation in legal disputes often revolves around the
interpretation of a particular section or only a sub-section of a statute.
So why would a judge do away with an entire statute?
In other words, what is at stake for Benjamin Cardozo is the operative scope of
precedents in the common law. If the scope is too narrow or too wide, judges will find
themselves doing jurisprudence from the bench rather than justice from the bench.
Benjamin Cardozo’s conclusion then is that ‘adherence to precedent should be the
rule and not the exception.’ If that is not the case then the effort involving in judging
cases would not be cost-effective to the parties to the dispute, to the judiciary, and
the legal system.
SHIVA KUMAR SRINIVASAN