The Nature of the Judicial Process

hat is the judicial process? Kantorowicz (Rechtswissenschaft and Soziologie, p.5) tells us that according to popular conception in Germany, it consists, or ought to consist, in dropping an appropriate section of a statute into a hopper, turning the crank and pulling out the correct decision at the bottom. Doubtless the current American belief is very similar, except that we are likely to credit the judge with a perverse ingenuity in so turning the crank that a wrong decision comes out. In this admirable little volume, Mr. Justice Cardozo tells us that turning the crank is far from being a purely mechanical process, that it is a matter of minute and delicate adjustments, that in its conscious form it is an application of philosophy, history and sociology, and that subconsciously powerful forces direct and help determine it. Judge Cardozo is a member of one of the busiest and most influential tribunals on the face of the earth, the Court of Appeals of New York State. That he can find time to subject his thinking and procedure to so close an analysis is a sign of high encouragement. He is quite abreast of the New Learning – new, that is to say, to lawyers trained in the common-law tradition – a learning that consists in treating the profoundly significant work of modern continental jurists not as a mischievous irrelevancy, but as a source of guidance and light. If he quotes mostly from the valuable series on legal philosophy and continental legal history issued by the American Association of Law Schools, that is apparently for the convenience of