"The Judge as a Legislator" is the subtitle of the third of Benjamin Cardozo's famous lectures on The Nature of the Judicial Process, delivered in 1921. Though emphasizing the restraints under which judges should act, Cardozo nevertheless compares the task of the judge with that of the legislator:
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 .... None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.
Cardozo goes on to say that "[i]n countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps.'"
In his jurisprudential views, Cardozo was moderate and eclectic. His characteristically eloquent formulation of the thesis that judges "legislate" reflects its widespread acceptance among jurisprudential writers of his time; and that thesis has come to be looked upon as an obvious truth by most members of the legal profession in this country who think about such matters.
Judges | Law
Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges,
Colum. L. Rev.
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