The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition

Abstract

It is hard to realize that forty years have passed since Judge Cardozo gave his famous lectures on The Nature of the Judicial Process at Yale and achieved at once national fame as well as that idolatrous regard of the law schools which eventually propelled him to the highest court of the land. Elsewhere the senior author has recorded his reactions as a cub of the Yale Law faculty in joining in the invitation to the then essentially unknown judge and of noting the instant reaction of his hearers which incidentally led to their shifting from the smallest lecture room (as originally planned) to the largest on the campus. These lectures of 1921 and their successors- The Growth of the Law, The Paradoxes of Legal Science -have now become so much a part of all legal thinking as to the judge's task of decision that reference to the originals is likely to be thought no longer necessary. But a rereading of these great monographs gives a sense of renewed life, of complete modernity, to their central thesis. And a strange recrudescence in legal literature of the thesis that judges must find or restate, and not make, law suggests that every generation must rediscover these truths for itself. We have been forcibly reminded of this recurring need by a promise to the editors of the Journal to review an important new book by Karl Llewellyn, brilliant legal philosopher and number one legal realist-a guild of which Cardozo was at least godfather-intriguingly entitled The Common Law Tradition: Deciding Appeals. If, as we fear, this otherwise sprightly book has omitted or at least slighted a major, if not climactic, part of Cardozo's teaching, then it is all the more rewarding to return to the master's words often and with due humility and attentiveness. So while this article is primarily a book review of the latest essay in this field, we have found it quite naturally becoming a tribute to Cardozo himself.