The Nature of the Judicial Process: Revisited

Abstract

This article suggests that in the past half-century basic changes have occurred in the sources of law utilized in the judicial process. It describes the jurisprudential environment within which Benjamin N. Cardozo's classic 1921 lecture "The Nature of the Judicial Process" was conceived, and briefly analyzes the common law model that prevailed in the United States during the 1920s. It then identifies, rather than evaluates, what I perceive to be major changes in that environment that characterize the present. The article argues that the common law is no longer the major source of law utilized in American judicial process, and that it is therefore important, if not essential, to recognize a distinction between the common law as a source of the law and the common law as a decisional process. Although the source of the law has undergone significant change, our decision-making tradition endures with undiminished vigor. Nevertheless, a confluence has now occurred between Anglo-American common law and the Continental-Roman Civil Law. The article emphasizes the importance of recognizing the meld of these two diverse jurisprudential schemes. The practitioner and the philosopher must not only recognize what has taken place, but must make the necessary adjustments when participating in or commenting on the judicial process.

PDF scan posted with permission of the University of Cincinnati Law Review.

Keywords: judicial process, Cardozo, common law, legal decision making, judges, judiciary, judging, Aldisert, jurisprudence