Old Books and Old Justices

In my frequent antique store book-hunting excursions, I often seek out old history and law books. The older the better. An old history or law book is like a time machine, zooming a current day reader off to a different world with different social norms, historical assumptions, and methods of thought.

To my delight, I was recently able to find a 1938 copy of professor Jerome Hall's Readings in Jurisprudence law school textbook for just two dollars. In it, along with dozens of well-known essays and articles about legal theory and judicial decision-making, is an excerpt from a 1921 essay by Benjamin Cardozo, at the time a state court judge in New York. Just over ten years later he would become a justice of the United States Supreme Court.

The excerpted article, "The Nature of the Judicial Process," describes Cardozo's multi-faceted approach to judging, an approach that would probably seem far too nuanced and malleable to the far more rigid contemporary schools of statutory and constitutional interpretation. 

Below is the excerpt as it appears in Professor Hall's book:

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 shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking a path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. 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. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art.

And, as a bonus relic from the past, I found a brief (and positive) review of Professor Hall's book, published in the 1939 volume of the fledgling Louisiana Law Review. The reviewer concludes: