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eBook The Nature of the Judicial Process ePub

eBook The Nature of the Judicial Process ePub

by Benjamin N. Cardozo

  • ISBN: 111056404X
  • Category: Criminal Law
  • Subcategory: Law
  • Author: Benjamin N. Cardozo
  • Language: English
  • Publisher: BiblioLife (June 4, 2009)
  • Pages: 182
  • ePub book: 1673 kb
  • Fb2 book: 1481 kb
  • Other: azw lit lrf docx
  • Rating: 4.6
  • Votes: 783


Benjamin n. cardozo, L. The process has been admirably stated by Munroe Smith: "In their effort to give to the social sense of justice articulate expression in rules and in principles, the method of the lawfinding experts has always been experimental

Benjamin n. New haven: yale university press london: humphrey milford oxford university press MDCCCCXXVIII. The process has been admirably stated by Munroe Smith: "In their effort to give to the social sense of justice articulate expression in rules and in principles, the method of the lawfinding experts has always been experimental. The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice.

The Nature of the Judicial ProcessbyBenjamin N. The Subconscious Element in the Judicial Process.  . The Addresses contained in this book were delivered in the William L. Storrs Lecture Series, 1921, before the Law School of Yale University, New Haven, Connecticut. Includes: In Memorium - Arthur P. McKinstry. Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American jurist who served on the New York Court of Appeals and later as an Associate Justice of the Supreme Court.

The legendary book by Justice Benjamin N. Cardozo explaining, in detail and with his famous style, how judges make decisions. Features a modern explanatory Foreword by Andrew L. Kaufman.


Albert Cardozo, Benjamin Cardozo's father, was a judge on the Supreme Court of.Cardozo, Benjamin N. (1921), The Nature of the Judicial Process, The Storrs Lectures Delivered at Yale University.

He was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars, and forced to resign While on the Court of Appeals, he criticized the Exclusionary rule as developed by the federal courts, saying: "The criminal is to go free because the constable has blundered. (1928).

Start by marking The Nature of the Judicial Process as Want to Read . Benjamin Nathan Cardozo was an American jurist who served on the New York Court of Appeals and later as an Associate Justice of th.

Start by marking The Nature of the Judicial Process as Want to Read: Want to Read savin. ant to Read. It is a testament to Justice Cardozo's immense gifts that a book of such a serious nature manages to be both informative, and insightful as well as being a treat to the senses for readers appreciative of the beauty of (and the clarity of thought that lies behind) well-written prose. Benjamin Nathan Cardozo was an American jurist who served on the New York Court of Appeals and later as an Associate Justice of the Supreme Court.

In this legal classic, Benjamin N. Cardozo - an Associate Supreme Court Justice of the United States from 1932-38 . Cardozo - an Associate Supreme Court Justice of the United States from 1932-38 - explains a judge's conscious and unconscious decision-making processes. Cardozo handed down opinions that stressed the necessity for the law to adapt to the realities and needs of contemporary life. Famous for his convincing and lucid prose, he offers insights that remain relevant to a modern view of American jurisprudence.

The book is a good introduction to law and its processes

The book is a good introduction to law and its processes. It certainly is not an authoritative text, as certain of his discussions seem to be out of date.

The Subconscious Element in the Judicial Process. Includes numerous notes on the lectures. This volume collects the four Storrs Lectures Delivered at Yale University by Benjamin N. Included are "The Method of Philosophy," "The Methods of History, Tradition and Sociology," "The Method of Sociology. The Judge as a Legislator," and "Adherence to Precedent.

Author Benjamin N. The Nature of the Judicial Process. Вам также могут понравиться. Vintage Paperback Outdoor & Nature Antiquarian & Collectible Books. Short Title NATURE OF THE JUDICIAL PROCESS.

This is a pre-1923 historical reproduction that was curated for quality. Quality assurance was conducted on each of these books in an attempt to remove books with imperfections introduced by the digitization process. Though we have made best efforts - the books may have occasional errors that do not impede the reading experience. We believe this work is culturally important and have elected to bring the book back into print as part of our continuing commitment to the preservation of printed works worldwide.


Gela Gela
“The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.’’

‘Easy description of his thinking impossible’! Why so hard?

“What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals?’’

Outstanding questions! Self-analysis is painful!

“Some principle, however unavowed and inarticulate and subconscious, has regulated the infusion. It may not have been the same principle for all judges at any time, nor the same principle for any judge at all times. But a choice there has been, not a submission to the decree of Fate; and the considerations and motives determining the choice, even if often obscure, do not utterly resist analysis. In such attempt at analysis as I shall make, there will be need to distinguish between the conscious and the subconscious.’’

‘Fate is not to blame. We are’ We choose words and make decisions.

“Constitutions are more likely to enunciate general principles, which must be worked out and applied thereafter to particular conditions. What concerns us now, however, is not the size of the gaps. It is rather the principle that shall determine how they are to be filled, whether their size be great or small. The method of sociology in filling the gaps, puts its emphasis on the social welfare.’’

Cardozo understands ‘sociology’ now has taken the overriding place in judicial theory.

““Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude.”

“The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised.” Foreign jurists have the same thought:

“The whole of the judicial function,” says Gmelin, “has... been shifted. The will of the State . . .”

(the will of the state)

“ . . .expressed in decision and judgment is to bring about a just determination by means of the subjective sense of justice inherent in the judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question. The determination should under all circumstances be in harmony with the requirements of good faith in business intercourse and the needs of practical life, unless a positive statute prevents it; and in weighing conflicting interests, the interest that is better founded in reason and more worthy of protection should be helped to achieve victory.”

“On the one hand,” says Gény, “we are to interrogate reason and conscience, to discover in our inmost nature . . .”

(in our inmost nature; well . . . think of the inmost nature of Hitler, Stalin, Robespierre)

“ . . .the very basis of justice; on the other, we are to address ourselves to social phenomena, to ascertain the laws of their harmony and the principles of order which they exact.” And again: “Justice and general utility, such will be the two objectives that will direct our course.”

“Liberty is not defined. Its limits are not mapped and charted. How shall they be known? Does liberty mean the same thing for successive generations? May restraints that were arbitrary yesterday be useful and rational and therefore lawful today?”

Well. . .liberty is something so. . .so. . .fluid?

“I have no doubt that the answer to these questions must be yes. There were times in our judicial history when the answer might have been no. Liberty was conceived of at first as something static and absolute. The Declaration of Independence had enshrined it. The blood of Revolution had sanctified it.’’

What changed? Yes, freedom is precious - into - no, Liberty is taken from individuals and given to the group.

“The political philosophy of Rousseau and of Locke and later of Herbert Spencer and of the Manchester school of economists had dignified and rationalized it.’’

“Laissez faire was not only a counsel of caution which statesmen would do well to heed. It was a categorical imperative which statesmen, as well as judges, must obey. The “nineteenth century theory” was “one of eternal legal conceptions involved in the very idea of justice and containing potentially an exact rule for every case to be reached by an absolute process of logical deduction.”

Liberty found by legal ideas and logically followed. This is bad?

“The century had not closed, however, before a new political philosophy became reflected in the work of statesmen and ultimately in the decrees of courts. The transition is interestingly described by Dicey in his “Law and Opinion in England.”

Interesting that Cardozo does not present the names that replaced Locke, etc.; perhaps Hegel, Fichte, Marx, Bukharin? He does credit James’ pragmatism. But pragmatism doesn’t seem to really supply the power for this dramatic reversal.

““The movement from individualistic liberalism to unsystematic collectivism” had brought changes in the social order which carried with them the need of a new formulation of fundamental rights and duties. In our country, the need did not assert itself so soon. Courts still spoke in the phrases of a philosophy that had served its day.’’

‘Individual Liberty to confused collectivism”.

“Gradually, however, though not without frequent protest and intermittent movements backward, a new conception of the significance of constitutional limitations in the domain of individual liberty, emerged to recognition and to dominance.’’

See most of the work of Isaiah Berlin, especially ‘Four enemies of Liberty’. Also, J. L. Talmon and his scholarly research.

“We see the same process at work in other fields. We no longer interpret contracts with meticulous adherence to the letter when in conflict with the spirit. We read covenants into them by implication when we find them “instinct with an obligation” imperfectly expressed. “The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal.”

‘Outgrown adherence to words’. What replaced this?

“There can be no wisdom in the choice of a path unless we know where it will lead. The teleological conception of his function must be ever in the judge’s mind. This means, of course, that the juristic philosophy of the common law is at bottom the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition.’’

The result is the key, not the present agreement.

“Only in determining how it functions we must not view it too narrowly. We must not sacrifice the general to the particular. We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance.’’

““The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making.

“The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions.”

Cardozo clearly grasps the legal disconnect to the ethical/moral/philosophical past. And believes it is good, and cannot be stopped.

Well. . . Cardozo gives an excellent presentation of the the change from ‘adherence to words’ to ‘teleological functionality’. From commitment to truth to guidance by sociology.

This speech at Yale in 1921. The old, outdated beliefs are the Judeo/Christian morality. These are the ones that supplied to scientific and industrial revolutions.

What has Rousseau’s, Comte’s ‘sociology’ given to modernity? Sociology was invented by Comte. ‘Scientific Reason’ supported the decisions of Hegel, Marx, Mussolini, Lenin, etc..

One key assumption with Cardozo’s argument is that experts - judges, legislators, scientists, etc., can anticipate the consequences of their legal coercion. Removing freedom form each and giving freedom to authority to force obedience is justified by its (planned, assumed) results.

What if the results don’t appear?

What happens when consequences are terrible?
salivan salivan
Inside the mind of one of the 20th Century's most influential jurists. Describing the elements that a judge uses to decide a case, Cardozo looks at everything ranging from stare decisis and precedent to subconscious bias and discusses the challenges faced by the judge in balancing the elements to arrive at both a judicially robust and just outcome. For the lawyer, political scientist or jurist, this is a must read by a brilliant mind.
This book is one of my absolute favorites. As anybody familiar with Justice Cardozo's opinions will well know, his writing is absolutely beautiful and (to me, at least) is unparalleled. This book -- which is a collection of talks that he gave at Yale in 1921 -- highlights his amazing abilities with language. I have re-read passages of this just to enjoy his writing, which sometimes feels more like poetry.

Beyond the writing, the substance of this book is also great. He basically explains of how judges decide cases -- and why they use different approaches. It is compelling and illustrating.

To anybody who considers himself a student of jurisprudence, or who just wants to learn more about the core of judicial thinking, this is definitely a fantastic book to read.
Ariseym Ariseym
Written in 1921, its no longer copyrighted. No need to buy it when you can download it free.

In fact, the printing I received seems to be a poorly formatted PDF printout of an older scanned copy (in a fancy binding). It seems to include some underlining and comments from the owner of the original book.

I felt a little cheated by the publisher - Bibliolife.
Rishason Rishason
Essential reading for those interested in the judicial process from a jurisprudential perspective and how judges think and act in the performance of their judicial duties. Although written almost 90 years ago, this is a classic that has stood the test of time.
Vutaur Vutaur
This book is a classic. While I like another edition better (the cover art) this book came complete, and in good condition.
Nothing personal Nothing personal
Cardozo's thoughts on the relation between statutes and the Constitution is a brilliant, simple, concise articulation of the relation between change and stability. His ideas directly parallel human factors engineering: statutes must be Constitution-friendly. This also parallels phenomenological philosophy: objectivity must be subject-friendly. I recommend this for legal, philosophical, engineering, science, and technological professionals and students.
Michael M. Kazanjian, Philosophy Instructor
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The law touches all, private citizens,lawyers and judges alike. I, a private citizen, study law as a defensive tool. Make the study of law a hobby because unlike most hobbies that may never bring one wealth, the hobby of studying law is guaranteed to "payoff" sooner or later!