INDIAN LAW INSTITUTE

Judicial Process Assignment

Use of Method of Sociology In Judicial Reasoning: Analysis of

Cardozo's Perspective

Submitted to: – Dr. P. Puneeth, Assistant Professor

Submitted by: – Ankit Yadav

Roll No. – 07/LL.M – 2 Yr. /2014.

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Table of Contents

S.No

.

Topic Page No.

1. Introduction. 4- 5

2. Cardozo on Nature Of Judicial

Reasoning

6 -7

3. Method Of Sociology as Judicial Method 8-11

4. The Social Function of Common Law 12

5. The Mores of Society 13-16

6. The Theory of Soceity 17-19

7. Experimental Attitude of Judges 19 - 20

8. Conclusion 21 - 22

Bibliography 23

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Acknowledgement

I Would like to Thank Dr. P. Puneeth for his support and encouragement in the making of this assignment. Through Research and verification, I came to know about the different aspects of judicial reasoning. This assignment makes an effort to make the readers aware of the Method of Sociology and its importance.

The material has been collected from various sources. This assignment follows Doctrinal method of Reserach and contains material on the Method of Sociology for Judicial Reasoning.

Thank You

Ankit yadav

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Introduction

This may seem like an easy question, for surely legal reasoning is simply reasoning about the

law, or about how judges should decide cases. On closer inspection, however, our ease may

evaporate, for both of these formulations are ambiguous, at least according to some ways of

thinking about the law.  Some legal theorists regard the questions, ‘what is the law?’, and ‘how

should judges decide cases?’ as distinct questions with distinct answers (see e.g. Hart 19941;

Kelsen 1967). That is to say, their accounts of law and their accounts of adjudication are not one

and the same, and they contend that in settling disputes which come before them, the remit of

judges is wider than merely trying to establish what the law is as regards the issues in the case at

hand. In adjudication, such theorists claim, extra-legal considerations can come into play, and

judges may have discretion to modify existing law or to fill in gaps where existing law is

indeterminate. Judicial Reasoning refers both to the process of thought by which a judge reaches

a conclusion as to the appropriate result in a case, and to the written explanation of that process

in a published judgment. The latter is the principal mechanism of judicial accountability: an

explanation of the reasons for decision is owed not only to the unsuccessful litigant, but to

everyone with an interest in the judicial process, including other institutions of government and

ultimately the public. No other public decision makers are under such a heavy obligation to

explain the reasons for their decisions. Yet the specialised nature of legal discourse means that

the function of public justification is often imperfectly realised: the explanations are designed to

be understood primarily by other judges.

While the published reasons for decision lend themselves to objective analysis, the underlying

processes of thought involved in exploring and resolving a legal problem are so complex and

variable that neither judges nor writers on jurisprudence have been able to reduce them to an

adequate explanatory or prescriptive model. Ideally, the written reasons for judgment not only

provide an accurate mirror of the underlying reasoning process, but may actually help to shape it:

the task of reducing one's thinking to writing is itself an aid to thinking, and sometimes a

decisiveaid.

1 H.L.A Hart, The Concept of Law 1994 Oxford University Press

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A typical written judgment begins by outlining the facts of the case, and then proceeds to a

discursive exploration of the relevant legal doctrines and principles.2 Implicit in this structure,

though rarely spelled out explicitly, is the idea that the final stage in the process of judicial

reasoning can be reduced to a syllogism: the relevant propositions of law provide the major

premise, the facts of the case are the minor premise, and the conclusion follows simply from the

application of the law to the facts.3In the process of clarifying his sociological jurisprudence,

Cardozo emphasis the use of the method of sociology in particularly. Therefore, the purpose of

this article is to analysis the method of sociology of Cardozo’s legal theory and reveals why

method of sociology has such an important position and why it has so large influence on

American common law.

2 . Rawls, A Theory of Justice 46-53 (1971)3 ibid.

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Cardozo on Nature Of Judicial Reasoning

Benjamin n Cardozo, an american jurist is remembered for his significant influence on the

development of American common law in the 20th century, in addition to his modesty and

philosphy. In his lectures delievered at Yale University in 1921, Cardozo raised the question as

to what goes inside the mind of a judge when pronouncing a judgement. In The book The Nature

of Judicial process4, he argues as to what do the judges do when they decide a case. He poses

some vital judicial questions a judge has to adhere to like to what sources of information a judge

should appeal to for guidance, in what proportions do they contribute to the final result, If a

precedent is applicable, how do I reach the rule that will make a precedent for the future?

Cardozo thought that societies are built around shared norms of conduct and that the common

law's function is to articulate and enforce those shared norms. However, he recognized that

certain social forces -- particularly moral evolution n150 -- sometimes prevent the law from

serving this function. Accordingly, he thought there was a need for a method of adjudication

designed to help judges overcome these obstacles

He sees as the force formulating "judge made law" some principle whether it is inarticulate or

Subconscious. Conscious principles which are to guide the judge in arriving at decisions in

appellate cases are latent within the cases, and they may be separated and classified and of the

subconscious forces which lie behind a judge's decision he says: "All their lives, forces which

they do not recognize and cannot name, have been tugging at them-inherited instincts, traditional

beliefs, Acquired convictions, and the resultant is an outlook on life, a conception of social

needs, a sense in James' phrase of the total push and pressure of the cosmos,”. Cardozo’s

principal concern, in such works as “The Nature of the Judicial Process” and “The Growth of the

Law” which are included in this volume, is to explain how the judge shapes legal doctrine to

whatever ends he has chosen. With a felicity of phrase and an aptness in the choice of examples,

though in a style often mannered and diluted, Cardozo tells us the methods of reasoning

available to the judge according to the accepted rules of his profession. He describes the

consequences ensuing for the law, from an emphasis on precedent or tradition, on logic or

doctrinal symmetry, or on economics. He explains in a balanced and mellow fashion why the

judge is not an automaton. Again and again he emphasizes the role of the judge as the servant of

4 Nature of Judicial process by Benjamin N .Cardozo , 1921 Yale University Press

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social flux. “The good of one generation,” Cardozo remarks, “is not always the good of its

successor. For the lawyer as for the moralist, the generalizations that result from the study of

social phenomena are ‘not fixed rules for deciding doubtful cases, but instrumentalities for their

investigation, methods by which the value of past experience is rendered available for present

scrutiny of new perplexities.’ Cardozo states the problem that confronts the judge as twofold:

“He must first extract from the precedent the underlying principle, the ratio decidendi, he must

then determine the path or the direction along which the principle is to move or develop, if it is

not to wither and die"5.

He does not deny that when constitution and statute are clear, the judge' s search is at an end. In

this event the role of the judge becomes secondary. But not so clear is the area left by the gaps in

the law.6 For dealing with these issues, Cardozo advocates Four methods of Interpretation for the

Judges inside the jus scriptum suggested by Geny and Ehlrich. These include The method of

philosophy, The method of history , the method of Tradition and method of Sociology.

5 Benjamin N. Cardozo, the Nature of the judicial process, page no 28 6 Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897)

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METHOD OF SOCIOLOGY AS JUDICIAL METHOD

From the first three methods of selection, i.e., of philosophy of history and of customs, we see

that no one method is free from all trace of one or more of the other methods. The same

phenomenon is true of the last method, the method of sociology. Cardozo understands the

method of sociology as a larger and more all-inclusive method than any of the former three. Of

this method he says: “finally, when the social needs demand one settlement rather than another,

there are times when we must bend symmetry, ignore history, and bend custom in the pursuit of

other and larger ends.”7 He states as the final cause of law as the welfare of society, and points

out that all other methods are dominated by this cause. Since this method of sociology is to be

the tool or instrument of the judge, there must be some limit to the method to prevent its

uncontrolled exercise by the judge. The method of sociology is, for Cardozo, the method par

excellence for filling up the “gaps in the written law.”But Cardozo is concerned not so much

with the rise of the gap to be filled as he is with the principle that shall determine how they are to

be filled, whether their size be great or small. Here again the emphasis is placed on the method

of selection rather than on what is selected, and the method of sociology in making this selection

he takes as its criterion the social welfare. Cardozo realizes that social welfare can mean public

policy or the social gain from adherence to a standard of right conduct- the mores of a

community. “In such cases,” he says “its demands are those of religious or of ethics or of the

social sense of justice, whether formulated in creed or system, or immanent in the common

mind.”8 Cardozo analyses and describes the method of sociology with a class of cases both in

constitutional law and in certain branches of private law. He regards the area of constitutional

law as perhaps the most suited to the application of this method, since the constitution extends to

a larger area than other rules and laws. Of Cardozo’s method of sociology Edwin Patterson says:

“the fourth method’ that of sociology, is not coordinate with the other three. In a sense it is

subordinate or inferior to them, because of the probability that the logical attainment of

established rules will give the court a guide which will be adequate to the needs of justice.” The

method of sociology signifies, for Patterson, “an appeal to ‘equity’ in the Aristotelian sense”. 9

Cardozo points out the divergence of thought on the question of whether the judge should use a

subjective or objective standard to determine the norms of right and useful conduct. He notes and 7 id. at 56 -618Supra note 5 @ 1099 Jurisprudence: Men and ideas of the Law by Patterson, Edwin Vol. 1 (1940) Foundation Press

9

approves the need for an objective standard to prevent “what the Germans call “Del

Gefuhlsjurisprudenz,” a jurisprudence of mere sentiment or feeling. He rejects the view that the

subjective standard should prevail, and says the standard should be that of the community, the

mores of the time. But here he cautions that this does not mean “that a judge is powerless to raise

the level of prevailing conduct.” Cardozo is concerned with the case in which practices that do

not meet accepted standards of morality have gained a temporary hold. In such a case he believes

that it is the duty of a judge to hold to the accepted standards of morality. Many jurists and

philosophers of the law have stressed the restrictions on the discretion of the judge in his “filling

in the gaps” Few summed it up more tartly than Holmes: “ I recognise without hesitation,” he

said , “ that judges must and do legislate, but they do so only interstitially, they are confined

from molar to molecular motions.” But Cardozo is concerned not so much with the rise of the

gap to be filled as he is with “the principle that shall determine how they are to be filled, whether

their size be great or small.” Here again the emphasis is placed on the method of selection he

takes as its criterion the social welfare. Cardozo realises that social welfare can mean public

policy or the social gain from adherence to a standard of right conduct- the mores of a

community. “In such cases,10” he says “its demands are those of religious or of ethics or of the

social sense of justice, whether formulated in creed or system, or immanent in the common

mind.” The method of sociology is for Cardozo the method by which the end of law i.e, the

social welfare, is served. He believes the teleological conception of law is constantly before the

judge, and he concludes that the “common law at bottom the philosophy of pragmatism.” But

Cardozo insists that the fact that a law is successful has nothing to do with its validity. He urges

that such an extreme position would be destructive of the consistency and uniformity secured by

using the other methods. This method of sociology is guided by viewing the end of law. The

final principle of selection for judge, as for legislators, is one of fitness to an end.” But he is

careful to stress the duty of the judge in attaining this end: “nothing less than conscious effort,’’

he says, “will be adequate if the end in view is to prevail. The standards or patterns of utility and

morals will be found by the judge in the life of the community. They will be found in the same

way by the legislator.”11 The analogy between the function of judge and legislator now emerges

in Cardozo’s thought. The legislator creates by framing new laws suited to the needs of the

community for which he legislates, the judge legislates only in the gaps left by the legislation, 10 Supra note 5 @ 7211 Nature of judicial process, 35 Harv. law review 479 (1922)

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but cannot, in Cardozo’s opinion, be blind to the same needs he observes in the community.

While the legislator is not hampered by any limitations in the appreciation of a general situation,

which he regulates in a manner altogether abstract, the judge, who decides in view of particular

cases, and with reference to problems absolutely concrete, ought, in adherence to the spirit of our

modern organisation, and in order to escape the dangers of arbitrary action, to disengage himself,

so far as possible, of every influence that is personal or that comes from the particular situation

which is presented to him, and base his judicial decision on elements of an objective nature. Both

in Cardozo’s own remarks and in those he cites as authorities in support of his view of the

judicial process as creative, the need for free decision coupled with an objective standard stand

out clearly. In affirming the power of the courts to declare law “and within limits the duty, to

make law when none exists,” Cardozo careful to point out that he does not ally himself with

Coke, Blackstone and hale, who held that judges does not legislate, nor with Austin, Holland, or

Gray, who held that there is no reality in law but the decisions of the courts. Rules of law which

are embodied in decisions do not, for Cardozo, lose their force as law merely because judges

overrule them. Rather, the rules retain their force as law independent of the pronouncement of

the judge in a given case. Thus the creative work of the judge lies in his choice of methods of

selection, the law embodied in the precedent applied has existence apart from its application by

the judge.

However, despite being an "extension" of the method of tradition,  [*1359]  the method of

sociology is in some ways a qualitative leap from the other three methods. As Patterson has

pointed out, for the methods of philosophy, evolution, and tradition, unlike sociology,

"established authoritative materials provide the legal doctrine." 12 In other words, the first three

methods embody what might be termed "ordinary" modes of common law reasoning. Cardozo

said nothing too dramatic when he recommended that judges dealing with hard cases look to

existing rules and precedent, historical materials, and prevailing practice. The unique quality of

the fourth method is that it raises concerns about the ability of particular laws to function for

socially desired ends.13 The method of sociology explicitly recognizes that judges must

sometimes ask not only what the law on a given question is, but also what the law ought to be.

12 Patterson, supra note 9, at 16213 ibid @ 9

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The method of sociology is thus concerned with what values one or another disposition of a case

will promote.

The Social Function of Common Law

The picture of social life elaborated above focuses on the idea that members of a society and its

smaller subdivisions recognize certain norms that define the obligations citizens owe one

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another. These norms establish expectations about how people ought to behave in various

circumstances. These expectations are typically reinforced by means of education,

indoctrination, and the sanction of community opinion. However, complex societies have

developed laws and legal institutions to arbitrate and settle definitively the content of these

obligations. These laws will naturally tend to enforce those obligations that have gained a certain

standing and recognition within a community. Thus, for example, Cardozo described the

common law doctrine of negligence as a judicial attempt to capture within a juridical concept a

range of obligations which members of his society believed individuals owed one another in

their private interactions. 14

When norms of obligation are incorporated into the common law they gain a special status. For,

once these norms are written into a judicial decision, the coercive power of public opinion is

reinforced by the greater coercive power of the state.15 Backed by a threat of government power,

legal obligations assume particular significance in the daily lives of a people. The common law

is that portion of customary behavior that has been "stamped in the judicial mint as law, and

thereafter circulate[s] freely as part of the coinage of the realm." 

  As a matter of description, then, Cardozo thought the law tends to reflect historically

recognized norms of obligation. But for Cardozo, this understanding of the common law also

served to reveal its proper function. He not only thought that the common law reflects and

enforces community standards of obligation; he felt that it ought to.

The Mores of Society

On the method of Sociology, which later scholars termed as the greatest of his four methods in

terms of its impact, Cardozo's Belief was that" the final cause of law is the welfare of the

14 id. at 297-9915 id. at 277

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society" and he hoped that judges would strive to shape the law in such a way as to "promote the

welfare of the society", acting within the limits imposed by the constitution and respect for the

Precedent, traditions and History. Firstly, analysing the arguments on "mores of the

community."Throughout the course of his argument, Cardozo refers to the "mores of the

community" as if it were only one such morality developed throughout the ages" available to the

judge. How does one Identify the welfare of the society?

The Sociologically oriented judge relies on what cardozo called the "mores of society", a term

that is integral to his definition of the public good: "The social gain that is brought by adherence

to the standards of right conduct, which find expression in the mores of the community. In such

cases, its demands are those of religion or ethics or of the social sense of justice, whether

formulated in creed or system, or immanent in the common mind". The "social sense of justice"

is of course different from how justice had been conceptualized in the dominant tradition of

Western political philosophy and jurisprudence, the goal there having been to systematize ideas

of right and wrong according to some absolute, universal doctrine16. Cadozo's pragmatic

understanding redirects the search for the source of justice to "the prevailing standard of right

conduct",17 which in this account is derived directly from the mores of the community.

For Cardozo's Ideal judge, the identification of justice with the social mores carried with it an

obligation to translate the prevailing standards of right conduct into law, irrespective of their

aggrement or disagreement with an absolute ethical standard.

Probably his most celebrated opinion on the Court of Appeals was that in MacPherson v. Buick

Motor Company18 (and it well illustrates his approach. The MacPherson case was a suit for

damages for personal injuries resulting from the collapse of the defective steering wheel of a

1914 Buick. It was argued by the company’s lawyers that the manufacturer was not liable

because the contract was with the dealer from whom the car had been purchased. They relied on

an old English case in which the court had held that the contractor who had sold the post office

department an imperfect stagecoach was not liable for the injuries sustained by the driver of the

coach. Cardozo spoke for a majority of the Court of Appeals in refusing to be bound by this

precedent and stated: “Precedents drawn from the days of travel by stage-coach do not fit the 16 Joseph L. Rauh. Jr, A Personal view of Justice Benjamin . n cardozo Rev.5 (1979)17 Richard Polenberg, The World of Benjamin cardozo 86(1997)18 (217 N.Y. 382),

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conditions of travel to-day. The principle that danger must be imminent does not change, but the

things subject to the principle do change. They are whatever the needs of life in a developing

civilization require them to be.” In discussing the role of the judge as a legislator (1921, pp.

98−171), Cardozo made it clear that to the modern jurist considerations of social utility are

particularly challenging. “The final cause of law,” he observed categorically, “is the welfare of

society” (1921, p. 66). In pursuing that goal, the judge must feel free to consult all available

sources of knowledge and insight: “Courts know today that statutes are to be viewed not in

isolation or in vacuo, as pronouncements of abstract principles for the guidance of an ideal

community, but in the setting and framework of present-day conditions, as revealed by the labors

of economists and students of the social sciences in our own country and abroad” (1921, p. 81). n

the earlier precedent, duty was imposed on defendants by voluntary contract via privity as in

the English case of Winterbottom v. Wright.19]This is the precursor rule for product liability. The

portion of the MacPherson opinion in which Cardozo demolished the privity bar to recovery is

as follows:

If the nature of a thing is such that it is reasonably certain to place life and limb in peril when

negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be

expected. If to the element of danger there is added knowledge that the thing will be used by

persons other than the purchaser, and used without new tests, then, irrespective of contract, the

manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we

need to go for the decision of this case ;If he is negligent, where danger is to be foreseen, a

liability will follow.20 Some of Cardozo's writing might suggest that this view inaccurately

downplays the role of the method of sociology. For example, he claimed that the method of

sociology must "dominate" the other methods. In another passage, he suggested that sociology is

"the arbiter between other methods, determining in the last analysis the choice of each. But the

implication of these comments is not that sociology is the preferred judicial method. Rather, the

point is that, over time, the method of sociology, as representative of community mores, is

irrepressible. Eventually, any legal rule, no matter how well entrenched, will be asked to justify

itself in terms of the purpose it serves. If the demands of social utility are sufficiently urgent, if

the operation of an existing rule causes sufficient hardship or inconvenience, social need will

19 10 m&w 109 (1842)20 Benjamin N. cardozo, The Growth of the Law 214(Universal Publishers, 2002)

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tend to triumph. The problem of the mores of the day is heightened in the Indian Context where

the judges sometimes do not share class consciousness as the majority of the population and

therefore often have a drastically different set of moral and ethical values from that of the

majority. The ,mores of the day then end up becoming the mores of certain educated elites who

have come to control power in post-colonial India. At the risk of generalisation, one could easily

point to the example of environmental litigations in India to bear out the arguments. Judges have

often been sympathetic to environment causes 9like automobile pollution) which trouble the

urban middle class (with whom the judges often share a consciousness rather than those which

are important to the rural poor. Cardozo brushed this issue aside by saying that the different

moralities of the different judges would cancel each other out.21

Testing Formulations of the Social Mind. Cardozo hoped that judges, by employing the method of sociology, were coming to adopt a more

experimental attitude; he wanted them to treat their proposed principles as provisional and

subject to revision or revocation. He also hoped that they would continue to attempt to

synthesize a range of cases and factual situations within general principles. The ideal mindset

would be one in which legal hypotheses that "cannot prove their worth and strength by the test of

experience, are sacrificed mercilessly and thrown into the void."22 The practice of common law

would thus be revitalized by acts of bold conjecture and careful refutation. An effective,

unsentimental judicial "eugenics"  could thereby be achieved. Cardozo occasionally suggested

that the inculcation of an experimental disposition would suffice to ensure that judges employing

the   method of sociology to settle hard cases would produce, over time, legal rules reflecting

unbiased readings of the social mind.  This is not satisfactory. For he had to this point only

developed an argument that judges of a certain disposition would leave their formulations of the

requirements of the social mind open to rebuttal by contrary evidence. But from where would

that evidence come?23 Against what standard must hypothetical rules designed to articulate and

promote a set of moral norms be asked to prove their worth?

Cardozo's response was to encourage judges to rely on the social sciences, and in particular the

fledgling science of sociology. The method of sociology, unlike the others, is aptly named. The

21 http://www.manupatra.co.in/newsline/articles/Upload/A149DB6F-9D09-4B63-B963-D493286739D5.pdf 22 WEBER, LAW IN ECONOMY AND SOCIETY (1954)23 R. Posner, Cardozo: A Study in Reputation 74-91 (1990)

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final test of the validity of judicial readings of the social mind is the "systematic studies" of

"scientists and social workers."  Good judges will do their homework and take judicial notice of

all the relevant information available on a particular subject. Ultimately, then, Cardozo had

considerable faith in the information provided by both "applied" social science and expert

agency research. one sense, Cardozo failed to deliver what he felt it was necessary to provide. He

never delivered an algorithm to tell judges how to satisfy the conflicting demands of stability and

growth.  Instead, Cardozo did provide an analysis of adjudication that shows why it is realistic

for judges to believe that they can consciously adapt the law to changes in social mores without

undermining the rule of law.24 This argument culminated in his exposition of the style of

adjudication called the "method of sociology."  By this method, judges are to examine legal

issues and decide certain cases by direct reference to the mutually recognized obligations that

form the core of their communities. But to understand the method of sociology fully, one must

first recognize that Cardozo intended the scope of its application to be limited to cases that

surpass a certain threshold of difficulty. Moreover, even in these cases, the method of sociology

is but one of four methods of reasoning on which a judge might rely.

The Theory of Society

A better understanding of Cardozo's belief in the need for a "principle of growth" must start with

an analysis of the larger context within which law functions. As he put it, the problem of law's

growth cannot be  comprehended without first understanding law's social origins.25  Fortunately,

24 Supra note @ 925 Growth, supra note 22 @ 247

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Cardozo's thoughts on the social origins of law reveal a well-developed social theory. This

theory in turn forms the basis of his view of the function of common law.

Cardozo saw common law as the codification of norms of conduct that are customarily

recognized by people within a nation or smaller social group. These norms in turn reflect

behavioral patterns that have proved useful to groups of people over time. A group's norms of

conduct sometimes take the form of relatively obvious and specific requirements (for example,

the expectation that a motorist will exercise certain precautions against harming others).  They

also appear as more general maxims whose application in some instances may be subject to

dispute (for example, the rule that one ought to live up to one's contractual commitments).   Such

norms may come into existence and, for a time, continue to flourish with little reflection (for

example, the habitual practice of exchanging courtesies when passing in the street).26 They may

also embody rules of conduct that have been adopted because deliberation has shown that they

are valuable to society. 

At any moment in history, many of these kinds of norms will be widely endorsed by, and

enforced among, members of a given social group. "There are certain forms of conduct,"

Cardozo wrote, "which at any given place and epoch are commonly accepted under the

combined influence of reason, practice and tradition, as moral or immoral."27  These norms

create widely shared expectations of how one ought to behave in certain circumstances.

Unexcused departures from expected behavior will be condemned as wrong, and perhaps even

deserving of punishment. Cardozo denied that societies share, or ought to adopt, any one set of

norms. He believed that the norms that govern individuals' lives are relative to the historical time

and place in which those people live.  His belief was not simply that norms of moral obligation

are specific to certain cultural and political borders, but also that this web of expectations and

obligations, inculcated in individuals through education and the "pressure" of social opinion, 

constitutes the identity of a social group, the very fabric of a society.  Cardozo used various

terms to capture his view of society and its moral core. He sometimes followed Leonard

Hobhouse in personifying the shared beliefs prevalent in a society as a "social mind." 28 He also

wrote of society's "mores." Insofar as these terms sound dated, they do   Cardozo a disservice by

26 example is taken from R. Dworkin, Law's Empire 47 (1986)27 Wellington, The Nature of Judicial Review, 91 Yale L.J. 486, 486 (1982)28 quoting L. Hobhouse, Social Evolution and Political Theory 96-97 (1911)

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suggesting that the content of his social theory is equally archaic. Another term he used may ring

more truly to the ears of a modern audience: "community." In Cardozo's terms, a community is

any social group that shares norms defining the obligations owed by individual members to one

another in their interactions.

Cardozo recognized that the prevailing norms of modern, complex communities tend to vary in

three important ways. First, norms vary within a community because they depend on the context

in which individuals interact. Interactions between two strangers, between commercial actors

dealing at arm's length, between employer and employee, between partners in a business venture,

and between members of a family are each likely to be governed by different expectations and

therefore different obligations.29  Second, and more important, norms of behavior vary among

different sub-groups within any large community.  In other words, the term "community" is not

meant to connote a monolithic society. Any American (or, for that matter, any New Yorker) of

Cardozo's day would likely owe allegiances to her family, religious group, ethnic group,

neighborhood, and/or business associates, among others. Furthermore, the standards of different

sub-groups may conflict just as often as they overlap. As Cardozo recognized, modern American

communities are, paradoxically, heterogeneous. They form "'a union of disunions, a conciliation

of conflicts, a harmony of discords.'" In short, social and cultural heterogeneity and the conflicts

it breeds always exists within a broader sphere of agreement: society is always a locus of conflict

but never merely a common location for people with nothing in common.

The third, and equally crucial, manner in which norms vary within a community is along the

dimension of time. Although social obligations are in some sense traditional, they are not

unchanging or permanent. Social habits, beliefs, and practices develop and change in largely

spontaneous ways, "silently and unconsciously from one age to another."30  When Cardozo spoke

of the evolution of a community, he had in mind a   variety of changes, which ranged from fairly

concrete transformations of commercial practices to more nebulous and profound shifts in a

community's basic moral conceptions. The movements he saw around him included, for

example, changes in the shipping business that occurred in response to the conditions imposed

on shippers by World War I,  evolving conceptions of domestic relations that expanded women's

rights against their husbands, and a growing religious tolerance. . Each of these trends 29 B. Cardozo, Mr. Justice Holmes (1931), reprinted in Selected Writings30 Supra note @ 17

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fundamentally altered what certain members of American society expected and demanded of one

another.

The Experimental Attitude of judges

Cardozo thought that a crucial step in the conversion of judges from precedent-worship toward

experimental adjudication was underway as he wrote. Various developments within the practice

of law, including the formation of the American Law Institute and its initial attempts at restating

the common law,  an increasing interest in the academic study of law,  and the growing influence

of law journals as indicated to Cardozo that law was on its way to adopting not just the form of

a scientific enterprise, but the objective and experimental attitude that he took to be one of the

hallmarks of science.31  He thought that the judges of his time soon would be operating in an

environment in which they would be fully conscious of the necessarily provisional nature of their

readings of the social mind and fully open to having them revised or discarded in the face of

conflicting evidence. 

As an example of experimental judging infused with the ethos of science, Cardozo cited a line of

cases attempting to define a rule of liability for negligent misrepresentations causing economic

harm between parties not in privity.  The first case in this line, Glanzer v. Shepard,32 held that a

weighed of beans under contract with the seller of the beans could be liable to a buyer if, during

the course of providing the contracted-for service, the weighed negligently made

misrepresentations to the buyer that caused economic loss to the buyer.  Cardozo held that,

where the negligent party knew in advance that its representations were going to be relied upon

by a third party, the liability-limiting doctrine of privity ought not apply. Cardozo was careful to

state that the court had not announced an unqualified rule that a negligent party would be liable

for all foreseeable losses caused to third parties. 

In International Products Co. v. Erie Railroad Co.,33  a railroad company that had agreed to

store the plaintiff's goods was found liable for misinforming the plaintiff as to the location of the

goods, thereby preventing the plaintiff from collecting on an insurance policy when the goods

31 See What Medicine Can Do for Law, Address by Judge Benjamin Cardozo, The New York Academy of Medicine (Nov. 1, 1928)32 233 N.Y. 236, 135 N.E. 275 (1922)33 244 N.Y. 331, 155 N.E. 662 (1927)

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were destroyed by fire. Although this case was not about liability to third parties, Cardozo

thought it was important to that line of cases because it broadened the general principle

of Glanzer. It found liability for economic loss caused by negligent misstatements, regardless of

whether those statements were made as part of a service the defendant was performing.  Again,

the opinion carefully noted that the rule might be subject to further qualification. 

Conclusion

Cardozo’s view of the judicial process was radically structural rather than contextual both in its

origin and development. This concept of judicial process as a methodology greatly influenced his

notion on the question of natural law or the meaning and genesis of law. The judicial process

balances the use of the four methods of decision in such a way as to serve the social interests.

The standard by which this balance is achieved is the same for the Judge as for the legislator--life

itself . The judicial process looks to social welfare as an end to measure the effectiveness of law.

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The four methods of decision are not ends in themselves but means to the end of securing social

welfare. Social welfare is measured by a judge s experience of life, his understanding of the

prevailing canons of justice and morality, and his study' of the social science. But for a given

case, in default of objective standards furnished by the social sciences, the judge must be guided

by his own set of values. In this Cardozo differs from those positivists who would maintain that

in the absence of an objective standard determined by the legislature the judge is not free to

decide a case using his own set of values. The unity of Cardozo's philosophy of common law lies

in his understanding of social life. His view of the common law's purpose, its illnesses, and their

cures, flows from the belief that society is an evolving, pluralistic community. The kind of

community Cardozo envisioned, a community whose members are constantly being pulled by

diverse allegiances, is one that is always partly at odds with itself. The common law judge

operates against this background, always trying, given the constraints of an existing framework

of laws, to redefine for the community its fluid core of shared moral norms. Bound on one side

by stare decisis and the demands of the rule of law, and drawn on the other by a recognition that

the society which law is meant to govern is both complex and continuously changing, the

common law judge struggles to define in law that which citizens have in common. As a common

law judge and theorist, Cardozo dedicated himself to these more "trivial" causes in order to

shape the law that defines the everyday relationship between "man and man." For Cardozo

thought that within the web of common law rights and duties lay the bases of convergence and

consensus on which his community would stand. Through example and illustration, epigram and

invective, in hundreds of judicial opinions, Cardozo sought to articulate in common law rules the

moral dimensions of a new social order even as it emerged. Cardozo was a jurist and a judge not

a philosopher. It is true that he stressed the need for a philosophy as an aid to define the ends of

law and to govern its Application and growth. But his aim was to examine only one process to

which the name "law" could be applied.

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Bibliography

Books:

1) Benjamin. N Cardozo, The Nature of Judicial Process (New heaven University Press, 1961)

2) The World of Benjamin Cardozo :Personal Values and the Judicial Process( Harvard University Press, 1999)

3) Margaret E. Hall, Selected Writings Of Benjamin N. Cardozo ( Matthew Bender Co. & inc., 1975)

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Articles:

1) Holmes, The Path of the Law, 10 HARV. L. REV. 457

2)Roscoe Pound, Sociology of Law And Sociological Jurisprudence

3)Pound, Sociological method: Administrative application of legal standards

4) Friedman, Richard .D, "Cardozo: the [Small] realist" Review of cardozo by A.L. kaufmann Mich.L.Rev. 98, no. 6 (2000)

5)http://www.manupatra.co.in/newsline/articles/Upload/A149DB6F-9D09-4B63-B963-D493286739D5.pdf