Equity, Morality and Law in The Nature of the Judicial Process

Abstract

For equity lawyers over the big pond, Cardozo is hero: one of a few judges whose fame has survived the great rift that opened between English and American law when the latter embraced fusion between equity and law and the consequent decline in the study of equity as an independent body of law. Cardozo’s extensive engagement with doctrines whose origins lie in equity (even if this has been long forgotten in his native country), the colorful language in which he immortalized them, and the bold ways in which he developed some of the central themes of modern equity—like the fiduciary relationship and the constructive trust—enshrined him as a force to be reckoned with in the field of equity. It is no wonder that a man of “[t]he most delicate conscience and the nicest sense of honour” like Cardozo, was drawn to equity as a major source of inspiration.1 In this paper I wish to argue that the jurisprudence of equity is a key to understanding his treatise on the art of judging, The Nature of The Judicial Process (NJP). While the text is too nuanced and rich to be placed firmly in one tradition or school of thought, I argue that the jurisprudence of equity with its highly sophisticated engagement with the issues that are of concern to Cardozo, and the historical perspective it offers to the pragmatically-minded jurist, serves as an essential foil for the work he aims to do in the text.