Benjamin N. Cardozo (1870 – 1938)
Long-time Justice of the Court of Appeals of New York, where his opinions included many declarations that would become famous in legal circles; he was appointed to the Supreme Court of the United States in 1932.
Code is followed by commentary, and commentary by revision, and thus the task is never done.
Membership in the bar is a privilege burdened with conditions.
Again and again, the altruist has arisen in politics, has bidden us share with others the product of our toil, and has proclaimed the communistic dogma as the panacea for our social ills. So today, amid the buried hopes and buried projects of the past, the doctrine of communism still lives in the minds of men. Under stress of misfortune, or in dread of tyranny, it is still preached in modern times as Plato preached it in the world of the Greeks.
Yet it is indeed doubtful whether, in the history of mankind, a doctrine was ever taught more impracticable or more false to the principles it professes than this very doctrine of communism. In a world where self-interest is avowedly the ruling motive, it seeks to establish at once an all-reaching and all-controlling altruism. In a world where every man is pushing and fighting to outstrip his fellows, it would make him toil with like vigor for their common welfare. In a world where a man's activity is measured by the nearness of reward, it would hold up a prospective recompense as an equal stimulant to labor. ... In the future, when the remoteness of his reward shall have weakened the laborer's zeal, we shall be able to judge more fairly of the blessings that the communist offers.
A judge is to give effect in general not to his own scale of values, but to the scale of values revealed to him in his readings of the social mind. ... Objective tests may fail him, or may be confused as to bewilder. He must then look within himself.
You will study the wisdom of the past, for in a wilderness of conflicting counsels, a trail has there been blazed. You will study the life of mankind, for this is the life you must order, and, to order with wisdom, must know. You will study the precepts of justice, for these are the truths that through you shall come to their hour of triumph. Here is the high emprise, the fine endeavor, the splendid possibility of achievement, to which I summon you and bid you welcome.
They do things better with logarithms.
The repetition of a catchword can hold analysis in fetters for fifty years or more.
Consequences cannot alter statutes, but may help to fix their meaning.
With traps and obstacles and hazards confronting us on every hand, only blindness or indifference will fail to turn in all humility, for guidance or for warning, to the study of examples.
It is well enough to say that we shall be consistent, but consistent with what? . . . The origins of the rule? The course and tendency of development? With logic or philosophy? With the fundamental conceptions of jurisprudence? All these loyalties are possible. All have sometimes prevailed.
It comes down to this. There are certain forms of conduct which at any given place and epoch are commonly accepted under the combined influence of reason, practice and tradition, as moral or immoral. ... Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate. In saying this, we are not to blind ourselves to the truth that uncertainty is far from banished. Morality is not merely different in different communities. Its level is not the same for all the component groups within the same community. A choice must still be made between one group standard and another. We have still to face the problem, at which one of these levels does the social pressure become strong enough to convert the moral norm into a jural one? All that we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest. The law will not hold the crowd to the morality of saints and seers. It will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous.
My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces dominate depends largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. ... The most fundamental social interest is that law shall be uniform and impartial. ... Uniformity ceases to be a good when it becomes uniformity of oppression.
The judicial process, as was said at the outset of these lectures, is a process of search and comparison, and little else.
The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. We say at times that the corporate entity will be ignored when the parent corporation operates a business through a subsidiary which is characterized as an 'alias' or a 'dummy.'... Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent.
Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.
Due process is a growth too sturdy to succumb to the infection of the least ingredient of error.
The state in commissioning its judges has commanded them to judge, but neither in constitution nor in statute has it formulated a code to define the manner of their judging. The pressure of society invests new forms of conduct in the minds of the multitude with the sanction of moral obligation, and the same pressure working upon the mind of the judge invests them finally through his action with the sanction of the law.
Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.
Inaction without more is not tantamount to choice.
The reconciliation of the irreconcilable, the merger of antitheses, the synthesis of opposites, these are the great problems of the law... We have the claims of stability to be harmonized with those of progress. We are to reconcile liberty with equality, and both of them with order. The property rights of the individual we are to respect, yet we are not to press them to the point at which they threaten the welfare or the security of the many. We must preserve to justice its universal quality, and yet leave to it the capacity to be individual and particular.