Cardozo’s Judicial Decision-Making With Special Reference To His Third Lecture, "The Judge As A Legislator"

S.Sabari, Assistant Professor, Mother Teresa Law College, Pudukkottai

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness."

-Benjamin N. Cardozo1

I. Introduction

Cardozo is interested in how the outlooks on life affect the way judges make decisions. A judge must always use an objective standard of right and wrong and must rule within his limits, always adhering to precedence in the absence of a detriment to social welfare. Philosophy, history, tradition, and sociology all are forces which inform a judicial decision, although a judicial decision must be based upon the mores of the community at the present time. A judge sometimes acts as a legislator when he fills in the gaps in the laws. A judge must act in good conscience and reason, and maintain law and morals.

Benjamin N. Cardozo, one of the most influential American jurists of the 20th century, is renowned for his contributions to the development of American common law. His series of lectures, later published as The Nature of the Judicial Process, offers deep insights into his judicial philosophy. In his third lecture, "The Judge as a Legislator," Cardozo explores the creative role of judges in shaping the law, highlighting the balance between adhering to precedent and adapting the law to meet contemporary needs. Judges also employ stare decisis and apply precedent when looking to common law. The common law derives generalizations from particulars and these decisions should be treated as “working hypotheses” and not “final truths.” These rules are retested and reformulated gradually over time, so a seemingly unimportant change may indeed be larger in magnitude down the line.