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The Nature of the Judicial Process
The legendary book by Justice Benjamin N. Cardozo explaining, in detail and with his famous style, how judges make decisions. Featuring a modern explanatory Foreword by Andrew L. Kaufman, law professor at Harvard and Cardozo's premier biographer, the Quid Pro Books edition is presented in a contemporary and legible format, with careful formatting, readable font, true footnotes, and photographs. As part of the Legal Legends Series, the correct page numbers are embedded so that passages can be accurately cited or found from the 1921 edition. No other current version of this important work uses correct pages or presents it in an updated and accurate form; no other contains an explanatory and historical introduction. Judges don't discover the law, they create it. Cardozo (1870-1938) offered the world a candid and self-conscious study of how judges decide law--they are law-makers and not just law-appliers, he knew--drawn from his insights on the bench, in a way that no judge had before. Asked "What is it that I do when I decide a case? To what sources of information do I appeal for guidance?," Cardozo answered in timeless prose. This book is still read today by lawyers and judges, law students and scholars, historians and political scientists, and philosophers--anyone interested in how judges really think and the many decisional tools they employ. Already famous at the time for his trenchant and fluid opinions as a Justice on New York's highest court (he is still studied on questions of torts, contracts, and business law), and later a Justice of the U.S. Supreme Court, Cardozo filled the lecture hall at Yale when he finally answered the frank query into what judges do and how they do it. The lectures became a landmark book and a source for all other studies of the ways of a judge.
158 pages, Paperback
First published December 1, 1921
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582 people want to read
About the author
Benjamin N. Cardozo
36 books6 followersAmerican jurist and writer Benjamin Nathan Cardozo served as an associate justice of the Supreme Court of the United States from 1932 until his death in 1938.
People remember his significant influence on the development of American common law in the 20th century in addition to his philosophy and vivid prose style. He earlier delivered many of his landmark decisions during his eighteen-year tenure from 1915 to 1932 on the court of appeals, the highest court of state of New York.
People remember his significant influence on the development of American common law in the 20th century in addition to his philosophy and vivid prose style. He earlier delivered many of his landmark decisions during his eighteen-year tenure from 1915 to 1932 on the court of appeals, the highest court of state of New York.
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Displaying 1 - 22 of 22 reviews
May 20, 2016
In addition to the insights and wisdom featuring the book, the writing of the famous Justice is quite impressive. He seems always able to strike the point with least number of words and most accurate terms, avoiding ambiguity, redundancy, and confusion. A book written after the gilded age, it inherited Holmes' judicial pragmatism and realism, and revealed another experienced American judge's reflection over adjudication and judicial thinking. Do remember this book is essentially a collection of speech delivered by the author in Yale Law School in honoring a lated Yale graduate. It was not an academic work that aims to reveal an universally comprehensive definition and approach of judging, nor was it an effort to examine the plural patterns and methods of judging world-wide (though Cardozo did cite a number of European judges and jurists for comparative purposes). This work was an contextual one, a personal one. It only discussed to the judicial process in the context of common law tradition and was largely influenced by the progressive philosophy then. Judges, in Cardozo's eyes, are not merely "applying" laws when they decide cases. Non-legal factors such as history, tradition, and social changes certainly influence judges' thinking and, if considered and incorporated into the judicial process properly, may help the judges deliver the most appropriate and desirable result for the cases that they are deciding. Assuming law-making is necessarily part of adjudication work and the judges possess the power to weigh factors that exist outside the legal system in producing their result, the major problem for the author to deal with in this book is when the need of making laws rises in the judicial process and how could the judges avoid abusing the power and damaging the authority as they make laws on their bench. So this is a work of balance. It balance the recognition (positively and normatively) judicial activism with the warning that such practice presupposes proper limit and constraint. There is no way to theorize or abstract such balance--the success of it may only rest upon experiences and art of judging. I would call Cardozo's judicial process a conditional and limited judicial activism that echoes both the tradition of judicial conservatism and the contemporary demand of responsive judging.
February 13, 2018
A nuanced analysis of the factors operating in the mind of a Judge, when exercising his/her judicial function. Written in 1921, during his tenure at the New York Court of Appeals, Justice Cardozo draws upon his personal experience, as well as a wealth of research and reading, while deploying his considerable intellectual gifts, to flesh out and articulate, the nuance that lays behind the discharge of the judicial function. And he does all this, in the most wonderful and enjoyable prose that takes the reader along at every step, without ever letting their attention falter, as the prose in serious literature is often wont to do. The book is littered with quotable sentences, each stylishly articulating profound and universal truths, and dare I say, even crystallizing generations worth of knowledge and understanding into crisp, yet layered sentences which yield tremendous insights upon reflection.
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.
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.
December 19, 2025
These are a series of lectures that have been transcribed, so they’re easy enough to understand. Touching on everything from the role of sociology in legal decisions to how much difference should we have for stare decisis and precedent.
Probably not broadly recommended. Niche book from an influential judge about his theory of how the legal process should and often does work.
However, because of the content, I probably wouldn’t recommend this to anyone outside of law nerds. but for those in that camp, it’s an outstanding book and helped me place a ton of things I’ve been trying to wrap my head around as a law student.
Probably not broadly recommended. Niche book from an influential judge about his theory of how the legal process should and often does work.
However, because of the content, I probably wouldn’t recommend this to anyone outside of law nerds. but for those in that camp, it’s an outstanding book and helped me place a ton of things I’ve been trying to wrap my head around as a law student.
September 22, 2019
This lecture was initially given in 1921 and reprinted by the Yale University Press. Judge Cardozo was then on the New York Court of Appeals and had been a judge since 1913. The U.S. Supreme Court was just coming out of the Lochner era, when the Fourteenth Amendment was interpreted to give businesses a substantive due process right to exploit child (and other) labor.
Cardozo acknowledges that 90%+ of cases are a matter of applying settled law to facts -- in the words of John Roberts at his confirmation hearing, these are matters of calling balls and strikes. But this book of less than 200 pages focuses on the less than 10% where the law isn't settled, or conditions have changed considerably, or the wisdom of experience has counseled a different path. And in these cases, Cardozo argues, what is just and fair, judging by contemporary standards, needs to be taken into account. Statutes, and especially the Constitution, are not frozen in place at the time the legislators write them, because legislators cannot foresee how things will develop and what new situations their laws will be applied to. In short, Cardozo argues both for a living Constitution and for the continuing importance of the common law even in an era of statutes.
Even though this book is kind of obscure, Cardozo's thoughts -- and his opinions when he was on the Court of Appeals -- influenced greatly the justices that President Roosevelt, Truman and Eisenhower appointed. Society was changing rapidly and the Constitution could no longer be interpreted to prevent Congress from enacting laws to help people on a broad scale, nor could it countenance the Jim Crow laws of the South. That mindset -- that laws should, within the bounds of precedent (unless that precedent has proven unwise over time), be interpreted to further the ends of justice -- comes from Cardozo and his contemporary, Holmes.
My torts professor Marshall Shapo recommended this book to my class in 2002. I'm glad I got around to reading it. The version I read was published by Kessinger Publishing, which publishes reprints of hard to find books. Apparently the best copy of this book that Kessinger could get their hands on was one that a law student had neatly underlined in parts. That's pretty unusual.
Cardozo acknowledges that 90%+ of cases are a matter of applying settled law to facts -- in the words of John Roberts at his confirmation hearing, these are matters of calling balls and strikes. But this book of less than 200 pages focuses on the less than 10% where the law isn't settled, or conditions have changed considerably, or the wisdom of experience has counseled a different path. And in these cases, Cardozo argues, what is just and fair, judging by contemporary standards, needs to be taken into account. Statutes, and especially the Constitution, are not frozen in place at the time the legislators write them, because legislators cannot foresee how things will develop and what new situations their laws will be applied to. In short, Cardozo argues both for a living Constitution and for the continuing importance of the common law even in an era of statutes.
Even though this book is kind of obscure, Cardozo's thoughts -- and his opinions when he was on the Court of Appeals -- influenced greatly the justices that President Roosevelt, Truman and Eisenhower appointed. Society was changing rapidly and the Constitution could no longer be interpreted to prevent Congress from enacting laws to help people on a broad scale, nor could it countenance the Jim Crow laws of the South. That mindset -- that laws should, within the bounds of precedent (unless that precedent has proven unwise over time), be interpreted to further the ends of justice -- comes from Cardozo and his contemporary, Holmes.
My torts professor Marshall Shapo recommended this book to my class in 2002. I'm glad I got around to reading it. The version I read was published by Kessinger Publishing, which publishes reprints of hard to find books. Apparently the best copy of this book that Kessinger could get their hands on was one that a law student had neatly underlined in parts. That's pretty unusual.
February 6, 2025
It's a great book, but it’s difficult to understand Justice Cardozo’s writings. He was notoriously known for using prestigious language to express his opinions.
Before reading his book, you must familiarize yourself with legalese; otherwise, you will be lost entirely.
I would not recommend this book to a beginner.
Before reading his book, you must familiarize yourself with legalese; otherwise, you will be lost entirely.
I would not recommend this book to a beginner.
June 8, 2017
Wonderful lectures by the Justice Cordoza.
February 16, 2021
Could have been an email.
October 14, 2021
Fascinating. A clear and easy to understand exploration of jurisprudence and the general principles that guide judges in their decisions.
July 23, 2022
A very good series of lectures by eminent jurist Justice Benzamin Cardozo
A must read for anyone having dealings with law, law students, teachers, advocates, police officers and others.
A must read for anyone having dealings with law, law students, teachers, advocates, police officers and others.
November 11, 2025
Read:
- Various excerpts
- Various excerpts
October 8, 2023
A delight from the first word, because (but not *only* because) of Cardozo's singularly vivid prose. The man could bring the phone book to life. The creeping tedium of so much legal writing has made reading the old greats an increasingly somber affair. Smug textualist proofs are somehow both flabby and dead—elegant legal fictions that hide the judge and judging. Cardozo is obscure and baroque. He delights in reference and allusion. His words have secrets. But for me Cardozo's glittering scholasticism is a breath of fresh air. He asks you to work, but in return he levels with you, about both his own decision-making and the difficulties inherent to judging. Won't you sing a dirge for wisdom?
Enough empty nostalgia. Cardozo's candor in fact points to the book's main weakness. The text originally was a set of lectures about judging. As Cardozo is at pains to explain, the evergreen campaign to destroy all judicial discretion is doomed. When you try to fetter the judge with a statute, you simply force the judge to interpret the statute—which may well leave more room for an ill-motivated decision, not less, because often as not statutes have more moving parts than constitutions and common-law doctrines and therefore give a bad judge more to manipulate. It's just hidden from the public. In the end, and in the main, the same liminal cases will still make for hard choices. Trying to reduce judging to a ministerial administrative task is like trying to draw a square circle or trying to destroy the number three. It won't work. You can't destroy judicial power; all you can do is lie about it—often to oneself. And that Cardozo cannot abide.
Instead, he urges you to confront the burden of judicial—and for that matter lawyerly—choice. Don't flinch from it—accept it. When traditional sources of law fail to resolve the case, admit you're exercising real, if interstitial, power. Try to get out of your skin, overcome your prejudices and political ideology, and fairly apply all of the considerations a fair-minded person would think apply to a judicial decision—logical consistency, political and legal philosophy, "public policy" considerations, and the spirit of the age. Be wary of confidence in your priors. Doubt yourself. It seems hard to know what to apply because it is hard. In time, and with a little wisdom, you will get a sense of what a judge can and should do. One can only imagine the scorn the old man would heap on the textualist just-so stories cranked out by today's law clerks—let alone the scandalous notion of clerks regularly writing opinions in the first place.
All this is true. But framing considerations of this kind as advice on judging is like telling someone who wants to improve her writing to "write better." True, but worse than useless. If one's whole message is that the task necessarily presents difficulties that can't be reduced to an algorithm, and that you can learn only by doing, then this sort of commentary from an old hand is vague and unhelpful at best. Cardozo says as much near the end. The idea seems to be that if you get it, you aren't going to learn how to be a good judge by listening to him. That's true! And it isn't helpful at all! Start deciding traffic citations or something! Then you'll know. Still, I wouldn't have it any other way.
I come in at four stars rather than five only because Cardozo wanders into ridiculous digressions about then-current ephemera and quotes ponderous and justly-forgotten treatises at great length. That was the style at the time, but it was too much for me. I'd have preferred more Cardozo.
Enough empty nostalgia. Cardozo's candor in fact points to the book's main weakness. The text originally was a set of lectures about judging. As Cardozo is at pains to explain, the evergreen campaign to destroy all judicial discretion is doomed. When you try to fetter the judge with a statute, you simply force the judge to interpret the statute—which may well leave more room for an ill-motivated decision, not less, because often as not statutes have more moving parts than constitutions and common-law doctrines and therefore give a bad judge more to manipulate. It's just hidden from the public. In the end, and in the main, the same liminal cases will still make for hard choices. Trying to reduce judging to a ministerial administrative task is like trying to draw a square circle or trying to destroy the number three. It won't work. You can't destroy judicial power; all you can do is lie about it—often to oneself. And that Cardozo cannot abide.
Instead, he urges you to confront the burden of judicial—and for that matter lawyerly—choice. Don't flinch from it—accept it. When traditional sources of law fail to resolve the case, admit you're exercising real, if interstitial, power. Try to get out of your skin, overcome your prejudices and political ideology, and fairly apply all of the considerations a fair-minded person would think apply to a judicial decision—logical consistency, political and legal philosophy, "public policy" considerations, and the spirit of the age. Be wary of confidence in your priors. Doubt yourself. It seems hard to know what to apply because it is hard. In time, and with a little wisdom, you will get a sense of what a judge can and should do. One can only imagine the scorn the old man would heap on the textualist just-so stories cranked out by today's law clerks—let alone the scandalous notion of clerks regularly writing opinions in the first place.
All this is true. But framing considerations of this kind as advice on judging is like telling someone who wants to improve her writing to "write better." True, but worse than useless. If one's whole message is that the task necessarily presents difficulties that can't be reduced to an algorithm, and that you can learn only by doing, then this sort of commentary from an old hand is vague and unhelpful at best. Cardozo says as much near the end. The idea seems to be that if you get it, you aren't going to learn how to be a good judge by listening to him. That's true! And it isn't helpful at all! Start deciding traffic citations or something! Then you'll know. Still, I wouldn't have it any other way.
I come in at four stars rather than five only because Cardozo wanders into ridiculous digressions about then-current ephemera and quotes ponderous and justly-forgotten treatises at great length. That was the style at the time, but it was too much for me. I'd have preferred more Cardozo.
December 22, 2024
This book is not just about the ingredients that factor in a judge's decision. In the common law system, not only do judges have considerable latitude in interpreting the law, but they also have the power to fashion new rules. As such, this book also offers penetrating insight into the nature of law itself, and the society which constitutes the realm of its application.
Cardozo's breaks the judicial method down into four categories: 1) logic, symmetry, continuity with the past; 2) history, evolution, remembering the historical origins of a rule; 3) custom, tradition, trusting societal values and norms; 4) sociology, keeping in mind the ultimate goal of law: the welfare of society.
By distinguishing power and right, Cardozo carves out a middle ground between a formalist conception of law (which claims that all legal questions have a single answer found in the law) and a realist conception (which claims that law is simply whatever the judge says it is). In his view, it is true that judges have the power to decide legal questions however they'd like, even ignoring established legal principles, but they do not have the right to do so.
As Cardozo astutely points out, the ultimate source of the law is life itself. While on the surface, most cases are decided by reference to precedents, "back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn". And as obvious as that may seem, I appreciate his awareness that precedents and concepts are not the end-all-be-all, and that as a judge he is not in the business of arriving at objective truths about right and wrong. Indeed, Cardozo is frank about the fact that his is merely one perspective among many: "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own."
He also discusses the philosophy implicit within the common law: "The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively." He quotes Munroe Smith: "The rules and principles of case law have never been treated as final truths, but as working hypotheses." This process of experimentation and modification is gradual, its effects measured by decades or even centuries. Cardozo even arrives at a kind of postmodern theory of truth: "Nothing is stable. Nothing absolute. All is fluid and changeable. There is an endless becoming."
"The future, gentlemen, is yours. We have been called to do our parts in an ageless process."
Cardozo's breaks the judicial method down into four categories: 1) logic, symmetry, continuity with the past; 2) history, evolution, remembering the historical origins of a rule; 3) custom, tradition, trusting societal values and norms; 4) sociology, keeping in mind the ultimate goal of law: the welfare of society.
By distinguishing power and right, Cardozo carves out a middle ground between a formalist conception of law (which claims that all legal questions have a single answer found in the law) and a realist conception (which claims that law is simply whatever the judge says it is). In his view, it is true that judges have the power to decide legal questions however they'd like, even ignoring established legal principles, but they do not have the right to do so.
As Cardozo astutely points out, the ultimate source of the law is life itself. While on the surface, most cases are decided by reference to precedents, "back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn". And as obvious as that may seem, I appreciate his awareness that precedents and concepts are not the end-all-be-all, and that as a judge he is not in the business of arriving at objective truths about right and wrong. Indeed, Cardozo is frank about the fact that his is merely one perspective among many: "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own."
He also discusses the philosophy implicit within the common law: "The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively." He quotes Munroe Smith: "The rules and principles of case law have never been treated as final truths, but as working hypotheses." This process of experimentation and modification is gradual, its effects measured by decades or even centuries. Cardozo even arrives at a kind of postmodern theory of truth: "Nothing is stable. Nothing absolute. All is fluid and changeable. There is an endless becoming."
"The future, gentlemen, is yours. We have been called to do our parts in an ageless process."
October 23, 2008
I read this book as a lay person hoping to shed some light on all the current discussions about "activist judges" on the Supreme Court and the proper role of the judicial branch in our system. This book definitely helped.
I particularly thought the organization of the chapters into discussions focusing on one method or set of methods at a time was useful and made an otherwise dense, esoteric topic somewhat more accessible. Still, while it wasn't a hard read necessarily, it was pretty dry in places.
I particularly thought the organization of the chapters into discussions focusing on one method or set of methods at a time was useful and made an otherwise dense, esoteric topic somewhat more accessible. Still, while it wasn't a hard read necessarily, it was pretty dry in places.
July 23, 2013
Cardozo's thesis is dedicated to the hard case. Repeated over and over again, he insists there will be cases where precedent does not guide the judge—almost always in constitutional or common law cases—and the judge must resort to his understanding of community mores and customs.
This thesis is pretty far out stuff at present, but even Cardozo's asides in these lectures are worth consideration given his thoughtfulness and personal experience.
This thesis is pretty far out stuff at present, but even Cardozo's asides in these lectures are worth consideration given his thoughtfulness and personal experience.
May 22, 2016
Cardozo has a great writing style. There are no long, run-on sentences. The flow of each sentence and each subsequent sentence makes the writing easily accessible.
A few thoughts and observations. Cardozo does a great job identifying the different influences of judicial decision making. It was interesting to see how the Lochner decision, even almost a hundred years ago, was heavily critiqued then as much as today.
A few thoughts and observations. Cardozo does a great job identifying the different influences of judicial decision making. It was interesting to see how the Lochner decision, even almost a hundred years ago, was heavily critiqued then as much as today.
October 23, 2013
This is an interesting treatment of the implications of precedent. Do judges make law or do they simply interpret old law? How much interpretation is appropriate? Is law separate from morality or based upon it? He approaches these questions from three routes: philosophical, historical, and sociological.
October 10, 2016
Another must read!
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!
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!
December 5, 2007
cardozo, the famous former supreme court justice, shatters the myth of law's objectivity. instead, he argues that law has a "subconscious," that is, the underlying philsophies that drive judges whose duty it is to interpret law.
February 24, 2008
Anyone interested in judicial reasoning must read this book. Cardozo brings the spirit of a poet to the bench.
February 18, 2010
Almost everything I need to know about many current themes in the American legal system, and helping me to guide clients for the future.
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December 1, 2013Unknown soft
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May 16, 2019This entire review has been hidden because of spoilers.
Displaying 1 - 22 of 22 reviews