Ambivalence, Judicial Craftmanship, and the Development of the Law: Variations on a Theme of Benjamin Cardozo

Abstract

In The Nature of the Judicial Process, Cardozo identifies the embrace of uncertainty as a mark of judicial expertise. Such uncertainty, he claims, provides an occasion for the exercise of creative energy and the judicial development of the law. This paper critically examines and extends, in light of contemporary work on the philosophy and psychology of ambivalence, Cardozo’s views about the relevance of uncertainty in judicial decision making and its import for the evolution of the law. First, it provides an account of the benefits of ambivalence in judicial decision-making, with a special focus on the links that there are between ambivalence and judicial creativity. Second, it argues that there is a certain tension between Cardozo’s views on the important role that ambivalence plays in judicial decision-making and his view of law’s evolution as a streamlined, self-correcting, process. Two problems—the problem of hidden alternatives and the problem of unconceived alternatives—and the ever-present possibility of error vividly bring to light the extent to which law’s progress may be hampered. Third, it argues that for judges to recognize and resolve ambivalence in ways that positively contribute to the development of the law, a certain kind of judicial temperament must be developed. This temperament is neither skeptic nor dogmatic, vindicates imagination as a critical capacity for excellence in judging, and fosters a judicial style (and, more broadly, a legal culture) that, in Cardozo’s spirit, frees itself from the quest for certainty.