A Methodized Discretion. Analysis of judicial reasoning in Benjamin Nathan Cardozo’ writings

Abstract

The article’s aim is the analysis of some of the main themes examined in the most notable writings in legal theory by Benjamin Nathan Cardozo, such as The Nature of the Judicial Process (1921), The Growth of the Law (1924), The Paradoxes of Legal Science (1928) e Jurisprudence (1932). Particularly, the first paragraph examines the latter work, as prominent as curiously neglected by the literature (the only and considerable exception being Karl Llewellyn), with the purpose of pointing out how the broad notion of legal realism there presented can still be an useful analytical tool in order to investigate the complexity of that theoretical scenario. The second paragraph, instead, is dedicated to the scrutiny of the four method of judicial reasoning proposed by Cardozo, examining their relation to the crucial topic of judicial creation of law. Finally, the last paragraph focuses on some interesting observation of Cardozo about the relationship among the legislator and the constitutional justice, pointing out as the consideration developed on the matter by the author of The Nature of the Judicial process is far less naïf than the critical observations of Richard A. Posner are willing to recognize.