Use of Method of Sociology In Judicial Reasoning: Analysis of Cardozo's Perspective

February 3, 2018 | Author: Ankit Yadav | Category: Jurisprudence, Negligence, Precedent, Norm (Social), Common Law
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INDIAN LAW INSTITUTE Judicial Process Assignment

Use of Method of Sociology In Judicial Reasoning: Analysis of Cardozo's Perspective

Submitted to: – Dr. P. Puneeth, Assistant Professor Submitted by: – Ankit Yadav Roll No. – 07/LL.M – 2 Yr. /2014.


Table of Contents S.No.


Page No.



4- 5


Cardozo on Nature Of Judicial Reasoning

6 -7

3. 4. 5. 6. 7. 8.

Method Of Sociology as Judicial Method The Social Function of Common Law The Mores of Society The Theory of Soceity Experimental Attitude of Judges Conclusion Bibliography

8-11 12 13-16 17-19 19 - 20 21 - 22 23

Acknowledgement I Would like to Thank Dr. P. Puneeth for his support and encouragement in the making of this assignment. Through Research and verification, I came to know about the different aspects of judicial reasoning. This assignment makes an effort to make the readers aware of the Method of Sociology and its importance. The material has been collected from various sources. This assignment follows Doctrinal method of Reserach and contains material on the Method of Sociology for Judicial Reasoning.


Thank You Ankit yadav

Introduction This may seem like an easy question, for surely legal reasoning is simply reasoning about the law, or about how judges should decide cases. On closer inspection, however, our ease may evaporate, for both of these formulations are ambiguous, at least according to some ways of thinking about the law. Some legal theorists regard the questions, ‘what is the law?’, and ‘how should judges decide cases?’ as distinct questions with distinct answers (see e.g. Hart 1994 1; Kelsen 1967). That is to say, their accounts of law and their accounts of adjudication are not one and the same, and they contend that in settling disputes which come before them, the remit of judges is wider than merely trying to establish what the law is as regards the issues in the case at 1 H.L.A Hart, The Concept of Law 1994 Oxford University Press


hand. In adjudication, such theorists claim, extra-legal considerations can come into play, and judges may have discretion to modify existing law or to fill in gaps where existing law is indeterminate. Judicial Reasoning refers both to the process of thought by which a judge reaches a conclusion as to the appropriate result in a case, and to the written explanation of that process in a published judgment. The latter is the principal mechanism of judicial accountability: an explanation of the reasons for decision is owed not only to the unsuccessful litigant, but to everyone with an interest in the judicial process, including other institutions of government and ultimately the public. No other public decision makers are under such a heavy obligation to explain the reasons for their decisions. Yet the specialised nature of legal discourse means that the function of public justification is often imperfectly realised: the explanations are designed to be understood primarily by other judges. While the published reasons for decision lend themselves to objective analysis, the underlying processes of thought involved in exploring and resolving a legal problem are so complex and variable that neither judges nor writers on jurisprudence have been able to reduce them to an adequate explanatory or prescriptive model. Ideally, the written reasons for judgment not only provide an accurate mirror of the underlying reasoning process, but may actually help to shape it: the task of reducing one's thinking to writing is itself an aid to thinking, and sometimes a decisiveaid.

A typical written judgment begins by outlining the facts of the case, and then proceeds to a discursive exploration of the relevant legal doctrines and principles.2 Implicit in this structure, though rarely spelled out explicitly, is the idea that the final stage in the process of judicial reasoning can be reduced to a syllogism: the relevant propositions of law provide the major premise, the facts of the case are the minor premise, and the conclusion follows simply from the application of the law to the facts.3In the process of clarifying his sociological jurisprudence, Cardozo emphasis the use of the method of sociology in particularly. Therefore, the purpose of this article is to analysis the method of sociology of Cardozo’s legal theory and reveals why 2 . Rawls, A Theory of Justice 46-53 (1971) 3 ibid.


method of sociology has such an important position and why it has so large influence on American common law.

Cardozo on Nature Of Judicial Reasoning Benjamin n Cardozo, an american jurist is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty and philosphy. In his lectures delievered at Yale University in 1921, Cardozo raised the question as to what goes inside the mind of a judge when pronouncing a judgement. In The book The Nature of Judicial process4, he argues as to what do the judges do when they decide a case. He poses some vital judicial questions a judge has to adhere to like to what sources of information a judge should appeal to for guidance, in what proportions do they contribute to the final result, If a precedent is applicable, how do I reach the rule that will make a precedent for the future? 4 Nature of Judicial process by Benjamin N .Cardozo , 1921 Yale University Press


Cardozo thought that societies are built around shared norms of conduct and that the common law's function is to articulate and enforce those shared norms. However, he recognized that certain social forces -- particularly moral evolution n150 -- sometimes prevent the law from serving this function. Accordingly, he thought there was a need for a method of adjudication designed to help judges overcome these obstacles He sees as the force formulating "judge made law" some principle whether it is inarticulate or Subconscious. Conscious principles which are to guide the judge in arriving at decisions in appellate cases are latent within the cases, and they may be separated and classified and of the subconscious forces which lie behind a judge's decision he says: "All their lives, forces which they do not recognize and cannot name, have been tugging at them-inherited instincts, traditional beliefs, Acquired convictions, and the resultant is an outlook on life, a conception of social needs, a sense in James' phrase of the total push and pressure of the cosmos,”. 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. 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.’ Cardozo states the problem that confronts the judge as twofold: “He must first extract from the precedent the underlying principle, the ratio decidendi, he must then determine the path or the direction along which the principle is to move or develop, if it is not to wither and die"5.

5 Benjamin N. Cardozo, the Nature of the judicial process, page no 28


He does not deny that when constitution and statute are clear, the judge' s search is at an end. In this event the role of the judge becomes secondary. But not so clear is the area left by the gaps in the law.6 For dealing with these issues, Cardozo advocates Four methods of Interpretation for the Judges inside the jus scriptum suggested by Geny and Ehlrich. These include The method of philosophy, The method of history , the method of Tradition and method of Sociology.

METHOD OF SOCIOLOGY AS JUDICIAL METHOD From the first three methods of selection, i.e., of philosophy of history and of customs, we see that no one method is free from all trace of one or more of the other methods. The same phenomenon is true of the last method, the method of sociology. Cardozo understands the method of sociology as a larger and more all-inclusive method than any of the former three. Of this method he says: “finally, when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history, and bend custom in the pursuit of other and larger ends.”7 He states as the final cause of law as the welfare of society, and points out that all other methods are dominated by this cause. Since this method of sociology is to be 6 Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897)


the tool or instrument of the judge, there must be some limit to the method to prevent its uncontrolled exercise by the judge. The method of sociology is, for Cardozo, the method par excellence for filling up the “gaps in the written law.”But Cardozo is concerned not so much with the rise of the gap to be filled as he is with the principle that shall determine how they are to be filled, whether their size be great or small. Here again the emphasis is placed on the method of selection rather than on what is selected, and the method of sociology in making this selection he takes as its criterion the social welfare. Cardozo realizes that social welfare can mean public policy or the social gain from adherence to a standard of right conduct- the mores of a community. “In such cases,” he says “its demands are those of religious or of ethics or of the social sense of justice, whether formulated in creed or system, or immanent in the common mind.”8 Cardozo analyses and describes the method of sociology with a class of cases both in constitutional law and in certain branches of private law. He regards the area of constitutional law as perhaps the most suited to the application of this method, since the constitution extends to a larger area than other rules and laws. Of Cardozo’s method of sociology Edwin Patterson says: “the fourth method’ that of sociology, is not coordinate with the other three. In a sense it is subordinate or inferior to them, because of the probability that the logical attainment of established rules will give the court a guide which will be adequate to the needs of justice.” The method of sociology signifies, for Patterson, “an appeal to ‘equity’ in the Aristotelian sense”. 9 Cardozo points out the divergence of thought on the question of whether the judge should use a subjective or objective standard to determine the norms of right and useful conduct. He notes and approves the need for an objective standard to prevent “what the Germans call “Del Gefuhlsjurisprudenz,” a jurisprudence of mere sentiment or feeling. He rejects the view that the subjective standard should prevail, and says the standard should be that of the community, the mores of the time. But here he cautions that this does not mean “that a judge is powerless to raise the level of prevailing conduct.” Cardozo is concerned with the case in which practices that do not meet accepted standards of morality have gained a temporary hold. In such a case he believes 7 id. at 56 -61 8Supra note 5 @ 109 9 Jurisprudence: Men and ideas of the Law by Patterson, Edwin Vol. 1 (1940) Foundation Press


that it is the duty of a judge to hold to the accepted standards of morality. Many jurists and philosophers of the law have stressed the restrictions on the discretion of the judge in his “filling in the gaps” Few summed it up more tartly than Holmes: “ I recognise without hesitation,” he said , “ that judges must and do legislate, but they do so only interstitially, they are confined from molar to molecular motions.” But Cardozo is concerned not so much with the rise of the gap to be filled as he is with “the principle that shall determine how they are to be filled, whether their size be great or small.” Here again the emphasis is placed on the method of selection he takes as its criterion the social welfare. Cardozo realises that social welfare can mean public policy or the social gain from adherence to a standard of right conduct- the mores of a community. “In such cases,10” he says “its demands are those of religious or of ethics or of the social sense of justice, whether formulated in creed or system, or immanent in the common mind.” The method of sociology is for Cardozo the method by which the end of law i.e, the social welfare, is served. He believes the teleological conception of law is constantly before the judge, and he concludes that the “common law at bottom the philosophy of pragmatism.” But Cardozo insists that the fact that a law is successful has nothing to do with its validity. He urges that such an extreme position would be destructive of the consistency and uniformity secured by using the other methods. This method of sociology is guided by viewing the end of law. The final principle of selection for judge, as for legislators, is one of fitness to an end.” But he is careful to stress the duty of the judge in attaining this end: “nothing less than conscious effort,’’ he says, “will be adequate if the end in view is to prevail. The standards or patterns of utility and morals will be found by the judge in the life of the community. They will be found in the same way by the legislator.” 11 The analogy between the function of judge and legislator now emerges in Cardozo’s thought. The legislator creates by framing new laws suited to the needs of the community for which he legislates, the judge legislates only in the gaps left by the legislation, but cannot, in Cardozo’s opinion, be blind to the same needs he observes in the community. While the legislator is not hampered by any limitations in the appreciation of a general situation, which he regulates in a manner altogether abstract, the judge, who decides in view of particular cases, and with reference to problems absolutely concrete, ought, in adherence to the spirit of our modern organisation, 10 Supra note 5 @ 72 11 Nature of judicial process, 35 Harv. law review 479 (1922)


and in order to escape the dangers of arbitrary action, to disengage himself, so far as possible, of every influence that is personal or that comes from the particular situation which is presented to him, and base his judicial decision on elements of an objective nature. Both in Cardozo’s own remarks and in those he cites as authorities in support of his view of the judicial process as creative, the need for free decision coupled with an objective standard stand out clearly. In affirming the power of the courts to declare law “and within limits the duty, to make law when none exists,” Cardozo careful to point out that he does not ally himself with Coke, Blackstone and hale, who held that judges does not legislate, nor with Austin, Holland, or Gray, who held that there is no reality in law but the decisions of the courts. Rules of law which are embodied in decisions do not, for Cardozo, lose their force as law merely because judges overrule them. Rather, the rules retain their force as law independent of the pronouncement of the judge in a given case. Thus the creative work of the judge lies in his choice of methods of selection, the law embodied in the precedent applied has existence apart from its application by the judge. However, despite being an "extension" of the method of tradition, [*1359] the method of sociology is in some ways a qualitative leap from the other three methods. As Patterson has pointed out, for the methods of philosophy, evolution, and tradition, unlike sociology, "established authoritative materials provide the legal doctrine." 12 In other words, the first three methods embody what might be termed "ordinary" modes of common law reasoning. Cardozo said nothing too dramatic when he recommended that judges dealing with hard cases look to existing rules and precedent, historical materials, and prevailing practice. The unique quality of the fourth method is that it raises concerns about the ability of particular laws to function for socially desired ends.13 The method of sociology explicitly recognizes that judges must sometimes ask not only what the law on a given question is, but also what the law ought to be. The method of sociology is thus concerned with what values one or another disposition of a case will promote.

12 Patterson, supra note 9, at 162 13 ibid @ 9


The Social Function of Common Law The picture of social life elaborated above focuses on the idea that members of a society and its smaller subdivisions recognize certain norms that define the obligations citizens owe one another. These norms establish expectations about how people ought to behave in various circumstances. These expectations are typically reinforced by means of education, indoctrination, and the sanction of community opinion. However, complex societies have developed laws and legal institutions to arbitrate and settle definitively the content of these obligations. These laws will naturally tend to enforce those obligations that have gained a certain standing and recognition within a community. Thus, for example, Cardozo described the


common law doctrine of negligence as a judicial attempt to capture within a juridical concept a range of obligations which members of his society believed individuals owed one another in their private interactions. 14 When norms of obligation are incorporated into the common law they gain a special status. For, once these norms are written into a judicial decision, the coercive power of public opinion is reinforced by the greater coercive power of the state. 15 Backed by a threat of government power, legal obligations assume particular significance in the daily lives of a people. The common law is that portion of customary behavior that has been "stamped in the judicial mint as law, and thereafter circulate[s] freely as part of the coinage of the realm." As a matter of description, then, Cardozo thought the law tends to reflect historically recognized norms of obligation. But for Cardozo, this understanding of the common law also served to reveal its proper function. He not only thought that the common law reflects and enforces community standards of obligation; he felt that it ought to.

The Mores of Society On the method of Sociology, which later scholars termed as the greatest of his four methods in terms of its impact, Cardozo's Belief was that" the final cause of law is the welfare of the society" and he hoped that judges would strive to shape the law in such a way as to "promote the welfare of the society", acting within the limits imposed by the constitution and respect for the Precedent, traditions and History. Firstly, analysing the arguments on "mores of the community."Throughout the course of his argument, Cardozo refers to the "mores of the 14 id. at 297-99 15 id. at 277


community" as if it were only one such morality developed throughout the ages" available to the judge. How does one Identify the welfare of the society? The Sociologically oriented judge relies on what cardozo called the "mores of society", a term that is integral to his definition of the public good: "The social gain that is brought by adherence to the standards of right conduct, which find expression in the mores of the community. In such cases, its demands are those of religion or ethics or of the social sense of justice, whether formulated in creed or system, or immanent in the common mind". The "social sense of justice" is of course different from how justice had been conceptualized in the dominant tradition of Western political philosophy and jurisprudence, the goal there having been to systematize ideas of right and wrong according to some absolute, universal doctrine 16. Cadozo's pragmatic understanding redirects the search for the source of justice to "the prevailing standard of right conduct",17 which in this account is derived directly from the mores of the community. For Cardozo's Ideal judge, the identification of justice with the social mores carried with it an obligation to translate the prevailing standards of right conduct into law, irrespective of their aggrement or disagreement with an absolute ethical standard. Probably his most celebrated opinion on the Court of Appeals was that in MacPherson v. Buick Motor Company18 (and it well illustrates his approach. The MacPherson case was a suit for damages for personal injuries resulting from the collapse of the defective steering wheel of a 1914 Buick. It was argued by the company’s lawyers that the manufacturer was not liable because the contract was with the dealer from whom the car had been purchased. They relied on an old English case in which the court had held that the contractor who had sold the post office department an imperfect stagecoach was not liable for the injuries sustained by the driver of the coach. Cardozo spoke for a majority of the Court of Appeals in refusing to be bound by this precedent and stated: “Precedents drawn from the days of travel by stage-coach do not fit the conditions of travel to-day. The principle that danger must be imminent does not change, but the 16 Joseph L. Rauh. Jr, A Personal view of Justice Benjamin . n cardozo Rev.5 (1979) 17 Richard Polenberg, The World of Benjamin cardozo 86(1997) 18 (217 N.Y. 382),


things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.” In discussing the role of the judge as a legislator (1921, pp. 98−171), Cardozo made it clear that to the modern jurist considerations of social utility are particularly challenging. “The final cause of law,” he observed categorically, “is the welfare of society” (1921, p. 66). In pursuing that goal, the judge must feel free to consult all available sources of knowledge and insight: “Courts know today that statutes are to be viewed not in isolation or in vacuo, as pronouncements of abstract principles for the guidance of an ideal community, but in the setting and framework of present-day conditions, as revealed by the labors of economists and students of the social sciences in our own country and abroad” (1921, p. 81). n the earlier precedent, duty was imposed on defendants by voluntary contract via privity as in the English case of Winterbottom v. Wright.19]This is the precursor rule for product liability. The portion of the MacPherson opinion in which Cardozo demolished the privity bar to recovery is as follows: If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we need to go for the decision of this case ;If he is negligent, where danger is to be foreseen, a liability will follow.20 Some of Cardozo's writing might suggest that this view inaccurately downplays the role of the method of sociology. For example, he claimed that the method of sociology must "dominate" the other methods. In another passage, he suggested that sociology is "the arbiter between other methods, determining in the last analysis the choice of each. But the implication of these comments is not that sociology is the preferred judicial method. Rather, the point is that, over time, the method of sociology, as representative of community mores, is irrepressible. Eventually, any legal rule, no matter how well entrenched, will be asked to justify itself in terms of the purpose it serves. If the demands of social utility are sufficiently urgent, if the operation of an existing rule causes sufficient hardship or inconvenience, social need will tend to triumph. 19 10 m&w 109 (1842) 20 Benjamin N. cardozo, The Growth of the Law 214(Universal Publishers, 2002)


The problem of the mores of the day is heightened in the Indian Context where the judges sometimes do not share class consciousness as the majority of the population and therefore often have a drastically different set of moral and ethical values from that of the majority. The ,mores of the day then end up becoming the mores of certain educated elites who have come to control power in post-colonial India. At the risk of generalisation, one could easily point to the example of environmental litigations in India to bear out the arguments. Judges have often been sympathetic to environment causes 9like automobile pollution) which trouble the urban middle class (with whom the judges often share a consciousness rather than those which are important to the rural poor. Cardozo brushed this issue aside by saying that the different moralities of the different judges would cancel each other out.21 Testing Formulations of the Social Mind. Cardozo hoped that judges, by employing the method of sociology, were coming to adopt a more experimental attitude; he wanted them to treat their proposed principles as provisional and subject to revision or revocation. He also hoped that they would continue to attempt to synthesize a range of cases and factual situations within general principles. The ideal mindset would be one in which legal hypotheses that "cannot prove their worth and strength by the test of experience, are sacrificed mercilessly and thrown into the void."22 The practice of common law would thus be revitalized by acts of bold conjecture and careful refutation. An effective, unsentimental judicial "eugenics" could thereby be achieved. Cardozo occasionally suggested that the inculcation of an experimental disposition would suffice to ensure that judges employing the method of sociology to settle hard cases would produce, over time, legal rules reflecting unbiased readings of the social mind. This is not satisfactory. For he had to this point only developed an argument that judges of a certain disposition would leave their formulations of the requirements of the social mind open to rebuttal by contrary evidence. But from where would



that evidence come?23 Against what standard must hypothetical rules designed to articulate and promote a set of moral norms be asked to prove their worth? Cardozo's response was to encourage judges to rely on the social sciences, and in particular the fledgling science of sociology. The method of sociology, unlike the others, is aptly named. The final test of the validity of judicial readings of the social mind is the "systematic studies" of "scientists and social workers." Good judges will do their homework and take judicial notice of all the relevant information available on a particular subject. Ultimately, then, Cardozo had considerable faith in the information provided by both "applied" social science and expert agency research. one sense, Cardozo failed to deliver what he felt it was necessary to provide. He never delivered an algorithm to tell judges how to satisfy the conflicting demands of stability and growth. Instead, Cardozo did provide an analysis of adjudication that shows why it is realistic for judges to believe that they can consciously adapt the law to changes in social mores without undermining the rule of law.24 This argument culminated in his exposition of the style of adjudication called the "method of sociology." By this method, judges are to examine legal issues and decide certain cases by direct reference to the mutually recognized obligations that form the core of their communities. But to understand the method of sociology fully, one must first recognize that Cardozo intended the scope of its application to be limited to cases that surpass a certain threshold of difficulty. Moreover, even in these cases, the method of sociology is but one of four methods of reasoning on which a judge might rely.

23 R. Posner, Cardozo: A Study in Reputation 74-91 (1990) 24 Supra note @ 9


The Theory of Society A better understanding of Cardozo's belief in the need for a "principle of growth" must start with an analysis of the larger context within which law functions. As he put it, the problem of law's growth cannot be comprehended without first understanding law's social origins. 25 Fortunately, Cardozo's thoughts on the social origins of law reveal a well-developed social theory. This theory in turn forms the basis of his view of the function of common law. Cardozo saw common law as the codification of norms of conduct that are customarily recognized by people within a nation or smaller social group. These norms in turn reflect behavioral patterns that have proved useful to groups of people over time. A group's norms of conduct sometimes take the form of relatively obvious and specific requirements (for example, the expectation that a motorist will exercise certain precautions against harming others). They also appear as more general maxims whose application in some instances may be subject to dispute (for example, the rule that one ought to live up to one's contractual commitments). Such norms may come into existence and, for a time, continue to flourish with little reflection (for example, the habitual practice of exchanging courtesies when passing in the street). 26 They may also embody rules of conduct that have been adopted because deliberation has shown that they are valuable to society. At any moment in history, many of these kinds of norms will be widely endorsed by, and enforced among, members of a given social group. "There are certain forms of conduct," Cardozo wrote, "which at any given place and epoch are commonly accepted under the combined influence of reason, practice and tradition, as moral or immoral." 27 These norms create widely shared expectations of how one ought to behave in certain circumstances. Unexcused departures from expected behavior will be condemned as wrong, and perhaps even deserving of punishment. Cardozo denied that societies share, or ought to adopt, any one set of 25 Growth, supra note 22 @ 247 26 example is taken from R. Dworkin, Law's Empire 47 (1986) 27 Wellington, The Nature of Judicial Review, 91 Yale L.J. 486, 486 (1982)


norms. He believed that the norms that govern individuals' lives are relative to the historical time and place in which those people live. His belief was not simply that norms of moral obligation are specific to certain cultural and political borders, but also that this web of expectations and obligations, inculcated in individuals through education and the "pressure" of social opinion, constitutes the identity of a social group, the very fabric of a society. Cardozo used various terms to capture his view of society and its moral core. He sometimes followed Leonard Hobhouse in personifying the shared beliefs prevalent in a society as a "social mind."


He also

wrote of society's "mores." Insofar as these terms sound dated, they do Cardozo a disservice by suggesting that the content of his social theory is equally archaic. Another term he used may ring more truly to the ears of a modern audience: "community." In Cardozo's terms, a community is any social group that shares norms defining the obligations owed by individual members to one another in their interactions. Cardozo recognized that the prevailing norms of modern, complex communities tend to vary in three important ways. First, norms vary within a community because they depend on the context in which individuals interact. Interactions between two strangers, between commercial actors dealing at arm's length, between employer and employee, between partners in a business venture, and between members of a family are each likely to be governed by different expectations and therefore different obligations.29 Second, and more important, norms of behavior vary among different sub-groups within any large community. In other words, the term "community" is not meant to connote a monolithic society. Any American (or, for that matter, any New Yorker) of Cardozo's day would likely owe allegiances to her family, religious group, ethnic group, neighborhood, and/or business associates, among others. Furthermore, the standards of different sub-groups may conflict just as often as they overlap. As Cardozo recognized, modern American communities are, paradoxically, heterogeneous. They form "'a union of disunions, a conciliation of conflicts, a harmony of discords.'" In short, social and cultural heterogeneity and the conflicts it breeds always exists within a broader sphere of agreement: society is always a locus of conflict but never merely a common location for people with nothing in common. 28 quoting L. Hobhouse, Social Evolution and Political Theory 96-97 (1911) 29 B. Cardozo, Mr. Justice Holmes (1931), reprinted in Selected Writings


The third, and equally crucial, manner in which norms vary within a community is along the dimension of time. Although social obligations are in some sense traditional, they are not unchanging or permanent. Social habits, beliefs, and practices develop and change in largely spontaneous ways, "silently and unconsciously from one age to another." 30 When Cardozo spoke of the evolution of a community, he had in mind a variety of changes, which ranged from fairly concrete transformations of commercial practices to more nebulous and profound shifts in a community's basic moral conceptions. The movements he saw around him included, for example, changes in the shipping business that occurred in response to the conditions imposed on shippers by World War I, evolving conceptions of domestic relations that expanded women's rights against their husbands, and a growing religious tolerance. . Each of these trends fundamentally altered what certain members of American society expected and demanded of one another. The Experimental Attitude of judges Cardozo thought that a crucial step in the conversion of judges from precedent-worship toward experimental adjudication was underway as he wrote. Various developments within the practice of law, including the formation of the American Law Institute and its initial attempts at restating the common law, an increasing interest in the academic study of law, and the growing influence of law journals as indicated to Cardozo that law was on its way to adopting not just the form of a scientific enterprise, but the objective and experimental attitude that he took to be one of the hallmarks of science.31 He thought that the judges of his time soon would be operating in an environment in which they would be fully conscious of the necessarily provisional nature of their readings of the social mind and fully open to having them revised or discarded in the face of conflicting evidence. As an example of experimental judging infused with the ethos of science, Cardozo cited a line of cases attempting to define a rule of liability for negligent misrepresentations causing economic harm between parties not in privity. The first case in this line, Glanzer v. Shepard,32 held that a weighed of beans under contract with the seller of the beans could be liable to a buyer if, during 30 Supra note @ 17 31 See What Medicine Can Do for Law, Address by Judge Benjamin Cardozo, The New York Academy of Medicine (Nov. 1, 1928)


the course of providing the contracted-for service, the weighed negligently made misrepresentations to the buyer that caused economic loss to the buyer. Cardozo held that, where the negligent party knew in advance that its representations were going to be relied upon by a third party, the liability-limiting doctrine of privity ought not apply. Cardozo was careful to state that the court had not announced an unqualified rule that a negligent party would be liable for all foreseeable losses caused to third parties. In International Products Co. v. Erie Railroad Co.,33 a railroad company that had agreed to store the plaintiff's goods was found liable for misinforming the plaintiff as to the location of the goods, thereby preventing the plaintiff from collecting on an insurance policy when the goods were destroyed by fire. Although this case was not about liability to third parties, Cardozo thought it was important to that line of cases because it broadened the general principle of Glanzer. It found liability for economic loss caused by negligent misstatements, regardless of whether those statements were made as part of a service the defendant was performing. Again, the opinion carefully noted that the rule might be subject to further qualification.

32 233 N.Y. 236, 135 N.E. 275 (1922) 33 244 N.Y. 331, 155 N.E. 662 (1927)


Conclusion Cardozo’s view of the judicial process was radically structural rather than contextual both in its origin and development. This concept of judicial process as a methodology greatly influenced his notion on the question of natural law or the meaning and genesis of law. The judicial process balances the use of the four methods of decision in such a way as to serve the social interests. The standard by which this balance is achieved is the same for the Judge as for the legislator--life itself . The judicial process looks to social welfare as an end to measure the effectiveness of law. The four methods of decision are not ends in themselves but means to the end of securing social welfare. Social welfare is measured by a judge s experience of life, his understanding of the prevailing canons of justice and morality, and his study' of the social science. But for a given case, in default of objective standards furnished by the social sciences, the judge must be guided by his own set of values. In this Cardozo differs from those positivists who would maintain that in the absence of an objective standard determined by the legislature the judge is not free to decide a case using his own set of values. The unity of Cardozo's philosophy of common law lies in his understanding of social life. His view of the common law's purpose, its illnesses, and their cures, flows from the belief that society is an evolving, pluralistic community. The kind of community Cardozo envisioned, a community whose members are constantly being pulled by diverse allegiances, is one that is always partly at odds with itself. The common law judge operates against this background, always trying, given the constraints of an existing framework of laws, to redefine for the community its fluid core of shared moral norms. Bound on one side by stare decisis and the demands of the rule of law, and drawn on the other by a recognition that the society which law is meant to govern is both complex and continuously changing, the common law judge struggles to define in law that which citizens have in common. As a common law judge and theorist, Cardozo dedicated himself to these more "trivial" causes in order to shape the law that defines the everyday relationship between "man and man." For Cardozo


thought that within the web of common law rights and duties lay the bases of convergence and consensus on which his community would stand. Through example and illustration, epigram and invective, in hundreds of judicial opinions, Cardozo sought to articulate in common law rules the moral dimensions of a new social order even as it emerged. Cardozo was a jurist and a judge not a philosopher. It is true that he stressed the need for a philosophy as an aid to define the ends of law and to govern its Application and growth. But his aim was to examine only one process to which the name "law" could be applied.


Bibliography Books: 1) Benjamin. N Cardozo, The Nature of Judicial Process (New heaven University Press, 1961) 2) The World of Benjamin Cardozo :Personal Values and the Judicial Process( Harvard University Press, 1999) 3) Margaret E. Hall, Selected Writings Of Benjamin N. Cardozo ( Matthew Bender Co. & inc., 1975) Articles: 1) Holmes, The Path of the Law, 10 HARV. L. REV. 457 2)Roscoe Pound, Sociology of Law And Sociological Jurisprudence 3)Pound, Sociological method: Administrative application of legal standards 4) Friedman, Richard .D, "Cardozo: the [Small] realist" Review of cardozo by A.L. kaufmann Mich.L.Rev. 98, no. 6 (2000) 5)

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