Benjamin C. Zipursky, Fordham University School of Law, has posted Benjamin Cardozo and American Natural Law Theory, which is forthcoming in the Yale Journal of Law and the Humanities:
--Dan ErnstCardozo’s famous Storrs’ Lectures -- The Nature of the Judicial Process -- turned 100 years old in 2021, but its central themes resonate with many legal thinkers today. Is it possible to reconcile the creativity of adjudication with rule-of-law values central to our democracy? Is it possible for judges to strive to make the law better approximate justice while nonetheless retaining a sense of judicial humility central to their role in our system? Many of today’s legal academics, judges, and lawyers have responded to these tensions skeptically, by adopting a form of Legal Positivism combined with supposedly disciplined interpretive methodologies such as Originalism and Textualism – a view I label “Washington Legal Positivism.” Cardozo’s reaction -- spelled out in his Storrs’ Lectures -- was quite the opposite: while he rejected Legal Realism, Legal Positivism, and Classic Natural Law Theory, he believed that it was possible to harmonize creativity and justice-seeking in adjudication with fidelity to the law and a modest conception of judicial role suitable to our democratic system and to the maintenance of the rule of law. The article suggests that The Nature of the Judicial Process should be read as an early statement of a form of Natural Law theory especially suitable to modern American legal thought: “American Natural Law Theory,” as I call it. Quoting German and American predecessors, Cardozo wrote “the modern philosophy of law departs essentially from the natural-law philosophy in that the latter seeks a just, natural law outside of positive law, while the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law—out of what it is and of what it is becoming. ” On this view, I argue in detail, Cardozo’s jurisprudential descendants are most notably Lon Fuller and Ronald Dworkin. The second half of the article develops the possibility that while some of Ronald Dworkin’s work furthered the Cardozoan project of developing American Natural Law Theory (although not under that name), the replacement of Cardozoan judicial humility by Herculean moral arrogance was a turn in the wrong direction. It concludes by sketching a reconstruction of a Cardozoan natural law theory suitable to a restrained conception of the judicial role and a modest pragmatic approach central to The Nature of the Judicial Process.
Benjamin N. Cardozo (NYPL)
