Conflict, Consistency and the Role of Conventional Morality in Judicial Decision-Making

Abstract

Cardozo defends a pragmatic approach to judicial decision-making. Judges should apply and develop legal rules with an eye toward their social function. “Public policy” at this stage of decision-making theoretically could be rooted in a social scientific exercise or some other direct attempt to come up with the optimal rule. Cardozo instead directs judges to conventional morality. Conventional morality is an unlikely solution given the specter of inconsistency that it raises. But in the disagreement and conflict about conventional morality that seem to render it unstable lie the resources for self-correction over time. Judicial decision-making is inevitably inconsistent to some degree, no matter how judges try to fill in gaps after traditional decision-making criteria run out. Alternatives like custom, culture and attempts to decipher the “best rule” directly, do not link law with public discourse. Looking to conventional morality allows that judicial decisions, if not aligned, form a progressive arc over time.