Amazon.com: The Nature of the Judicial Process: Benjamin N. Cardozo: Books

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In this legal classic, a former Associate Supreme Court Justice explains the conscious and unconscious processes by which a judge decides a case. In simple, understandable language, he discusses the ways rulings are guided and shaped by information, precedent and custom, and standards of justice and morals.

Product Details

Paperback: 176 pages
Publisher: Dover Publications (August 1, 2005)
Language: English
ISBN-10: 0486443868
ISBN-13: 978-0486443867
Product Dimensions: 8.4 x 5.4 x 0.5 inches
Shipping Weight: 7 ounces (View shipping rates and policies)

Average Customer Review: 4.2 out of 5 stars See all reviews (5 customer reviews)

Amazon.com Sales Rank: #554,450 in Books (See Bestsellers in Books)

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First Sentence:
THE work of deciding cases goes on every day in hundreds of courts throughout the land. Read the first page

Key Phrases - Statistically Improbable Phrases (SIPs): (learn more)
customary morality, directive force

Key Phrases - Capitalized Phrases (CAPs): (learn more)
Modern Legal Philosophy Series, Modem Legal Philosophy Series, Modern State, Jethro Brown, Munroe Smith, Roman Law, Soziologie des Rechts, Der Kampf, Die Kunst, History of English Law, Legal Essays, Mechanical Jurisprudence, The Path of the Law, Vander Eycken

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Citations (learn more)

This book cites 18 books:

Authority in the Modern State by Harold J. Laski on 5 pages
The Nature and Sources of the Law by John Chipman Gray on 5 pages
Political Theories of the Middle Age by Otto Gierke on page 19, and page 133
Political Theories of the Middle Age by Otto Gierke on page 19, and page 133
The Data of Jurisprudence by William Galbraith Miller on page 35, and page 68

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100 books cite this book:

The World of Benjamin Cardozo: Personal Values and the Judicial Process by Richard Polenberg on 10 pages
Persons and Masks of the Law: Cardozo, Holmes, Jefferson, and Wythe as Makers of the Masks by John T. Noonan Jr. on 9 pages
Evolution and Revolution in Theories of Legal Reasoning: Nineteenth Century Through the Present (Philosophy of Legal Reasoning: A Collection of Essays by Philosophers and Legal Scholars) by Scott Brewer on 8 pages
The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom by Philip K. Howard on 6 pages
Winning on Appeal: Better Briefs & Oral Argument by Ruggero J. Aldisert on 6 pages

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4.2 out of 5 stars (5 customer reviews)

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54 of 57 people found the following review helpful:

5.0 out of 5 stars A classic text that remains relevant to judicial politics, April 14, 1999

By A Customer

This review is from: The Nature of the Judicial Process (The Storrs Lectures Series) (Paperback)

This book reflects the profound intellect of one of the most highly regarded jurists in American history. Despite its age, Justice Cardozo's classic treatise provides insights into the "real" workings of the judicial decision making process that remain relevant to a modern analysis of American jurisprudence. His exploration of the motivations, ideals, and even prejudicies of judges serves to demystify this crucial aspect of the legal system. His insights into "legal realism" provide an appreciation of this judicial approach and offers an understanding of its underlying rationale, as well as an argument for its continued utility for modern jurists. Most importantly, he strives to make the judicial process comprehensible and, even, approachable to the non-practitioner of law, as well as law students, thus attempting to make public law, truly, "public."

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11 of 11 people found the following review helpful:

5.0 out of 5 stars excellent explanation of the process of justice, July 21, 2002

By	D. Friedman (New York, NY United States) - See all my reviews (REAL NAME)

This review is from: The Nature of the Judicial Process (The Storrs Lectures Series) (Paperback)

The judicial process is often a maddeningly confusing one. Cardozo, one of the most well known and respected jurists in the history of American law, aims to give a relatively straightforward account of the judicial process.

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. However, given the authority accorded Cardozo in the legal world one can hardly go wrong starting out with this book.

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9 of 9 people found the following review helpful:

5.0 out of 5 stars Well constituted thinking, September 13, 2005

By	FrKurt Messick "FrKurt Messick" (Bloomington, IN USA) - See all my reviews (TOP 10 REVIEWER)

This review is from: The Nature of the Judicial Process (The Storrs Lectures Series) (Paperback)

Benjamin Nathan Cardozo has often been held up as one of the leading Supreme Court Justices in history, despite serving a mere six years on the high court (1932-38). Prior to this tenure, he served on the New York Court of Appeals, one of the principal courts of the nation, particularly during his time, from 1913-1932. Cardozo's opinions on interstate commerce, conflict of laws between federal and state, and congressional powr are still required reading not only for law school students, but also for those engaged in understanding the general manner in which Constitutional law is developed and regarded.

This book, first published in 1921, is a series of four lectures by then Judge Cardozo outlining his method of judicial process. The first lecture lays out a philosophical method. He explores the implications of Constitutional priority as well as the principle of stare decisis. 'Stare decisis is at least the everyday working rule of our law.' Cardozo is well aware of judicial power, be it in the Supreme Court or the lower courts. 'Every judgment has generative power,' he wrote, 'it begets in its own image.' However, precedent is not all powerful, and a good dose of reason and logic must be present in decision making.

In his second lecture, Cardozo looks at the issues of history (apart from precedent and particular case law), tradition and sociology in the judicial process. These all speak to the way in which society influences and shapes what kinds of judicial decisions and processes are needed. The third lecture develops this further, even going so far as to have the subtitle 'The Judge as Legislator.' This goes to the heart of one of the principles heavily in debate in the current Supreme Court and lower court selections. However, this kind of 'judicial activitism' is not the sole province of one political side or the other. Cardozo writes, 'sometimes the conservatism of judges has threatened for an interval to rob the legislation of its efficacy.' However, in speaking of the role of judge as legislator, Cardozo states, 'he legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart.' Cardozo argues that this is far from a new way of thinking, and that this is precisely how the great tradition of the common law developed.

Late in the third and throughout the fourth lecture, Cardozo looks at the issue of the subconscious or unconscious development of law and process for judges. This happens in legislation, too, Cardozo argues - when laws are examined in judicial settings, their dissection often reveals unintended and unknown aspects. The same must be true for the judicial process. Cardozo reasserts the principle of following precedent in a practical sense, and argues that that judicial process, being a human one, is bound by certain situations, but that the process as a whole is self-correcting. 'The eccentricities of judges balance one another.... Out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements.'

Cardozo's philosophy and thinking on the nature of the judicial process may not be to everyone's liking, but it has a strong place and influence in modern American judicial practice, and is presented in terms clear enough to make interesting reading even for those outside the legal profession.

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Most Recent Customer Reviews

1.0 out of 5 stars Dont Waste Your Time On This One.
Cardozo cannot string a sentence together that is simple and clear. He may have been a judicial giant, but how would you know from his writing? Read more

Published on May 6, 2006 by James B. Johnson

5.0 out of 5 stars The Nature of the Judicial Process
One of the Best short books ever written about judicial philosophy.

Published on August 9, 2005 by William L. Witham

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