Benjamin Cardozo’s The Nature of the Judicial Process is best understood as one of the most successful contributions to this category of work defending the common law on the basis of its process. In the book, Cardozo offers a spirited and principled defense of the judicial process, all in an effort to highlight the manner in which judges manage the seemingly pervasive uncertainty of the common law method in the discharge of their duties. All the same, it is obvious that he considered the project to be necessarily incomplete. Just a few years after the publication of the Judicial Process, he published a second set of lectures as a “supplement” to the Judicial Process, recognizing that a few ideas were “imperfectly developed” and required fuller elaboration. This second set would come to be published under the title The Growth of the Law.
In this Essay, I argue that Cardozo’s commitment to certainty in the common law embodied a complex structure, masking a potential analytical paradox. Whereas Judicial Process was directed at making readers comfortable with the uncertainty of the common law and having them accept it as an innate feature of the system, Growth readily acknowledged that the uncertainty of common law doctrine deserved being addressed on its own terms. Implicit in that acknowledgement was a recognition of the inadequacy of the common law process to tame the uncertainty of common law doctrine. And while Cardozo attempted to reconcile the two with a grossly underdeveloped theory suggesting that the certainty of the common law would invigorate the judicial process, that theory has seen little validation not just since, but in the very opinions that Cardozo wrote.
Common Law | Law
Cardozo and Uncertainty in the Common Law,
Yale J. L. & Human.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3960