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When Judge Cardozo Writes

Law and Literature, and Other Essays and Addresses, by Benjamin N. Cardozo. New York: Harcourt, Brace and Company. 190 pages. $2.75.

To laymen, the dichotomy between law and literature is merely one aspect of the conflict between law and life. A feeling so widely and deeply held by even the most cultivated outside the law cannot be nurtured wholly upon untruth. And yet it conceals a fine covey of paradoxes which would have been fair game for a Hazlitt, though for all I know he himself shared the feeling or put to flight at least some of its paradoxes. That nothing which is human is alien to him, is truer of the lawyer than even of doctor or priest. For the lawyer’s office is frequently a confessional, and long before psychiatry had its name wise lawyers had to practice its arts. The work of courts is in essence the composition of human rivalries, the arbitrament of conflicting human desires. Something of its human origin ought therefore to be secreted in the records of the law; at least an occasional heartbeat ought to be found within law-sheep binding. And the adventurous-minded, the sophisticated who do not like to slumber too easily on the dogma that law is outside of life or that life is without law, would be rewarded more richly than they suspect by those records of the variegated human scene we call the law reports. Thus, in a single pamphlet of recent opinions may be found an exciting analysis of the originality, if any, of the dramatic qualities of “Abie’s Irish Rose” and disclosures regarding the practice of birth control in the United States, the more revealing because set forth with calculated sobriety. If it be true, as Robert Louis Stevenson said, that the writer who knew what to omit could turn a daily paper into an Odyssey, then, as the lawyers would say, it is a fortiori true of the law reports.

But I am afraid that even with these few remarks I have added further proof that of the many mansions in the house of literature, law is not one. Incurably subdued by the materials of my profession, I seemingly cannot write a paragraph without “if anys” and a fortioris. Here is the inevitable lawyer’s writing--the dull qualifications and circumlocutions that sink any literary barque or even freighter, the lifeless tags and rags that preclude grace and stifle spontaneity. In good measure one may admit the charge, without implying that the limits of one of her votaries are the law’s limits. It will not do to press the claims of law upon literature by denying that the law has its own great preoccupation distinct from that of literature. Once and for all, Mr. Justice Holmes has put our case, with colors flying and without arrogance: “Of course the law is not the place for the artist or the poet. The law is the calling of thinkers.” Literature is not the goal of lawyers, though they occasionally attain it. With more explicitness to the matter in hand, though wholly free from didacticism. Chief Judge Cardozo in this volume of essays makes clear why the artist’s search for beauty cannot be the lawyer’s prime concern. For the judge, with us the ultimate spokesman of the law, must be “historian and prophet all in one.” The law must be declared “not only as the past has shaped it in judgments already rendered, but as the future ought to shape it in cases yet to come. Those of us whose lives have been spent on the bench and at the bar have learned caution and reticence, perhaps even to excess. We know the value of the veiled phrase, the blurred edge, the uncertain line.” Here we have the source of the antinomy between law and literature. “Caution and reticence” are not the wellsprings of literature, but they are indispensable to wisdom in law, certainly to wisdom in adjudication. Since judges must be prophets, in other words since judges not merely register the past but direct the future, they had best not presume too much upon a wisdom that was denied the Delphic oracles. By a strange inconsistency, those who chafe most against the governance of the present by the edicts of the past too frequently want the present to pronounce against the future, forgetting that for the future the present will be the past.

Law, then, is not part of belles lettres. But within the limits of its responsibility and its themes, law has not come empty-handed to the altars of literature. A comprehensive account of English literature, as the expression of English thought, could hardly omit Mansfield, Stowell and Bowen, to mention only modern judges, and Maitland’s genius shows with what imagination and charm the story of the law can be invested.

When I think thus of the law, I see a princess mightier than she who once wrought at Bayeux, eternally weaving into her web dim figures of the ever lengthening past--figures too dim to be noticed by the idle, too symbolic to be interpreted except by her pupils, but to the discerning eye disclosing every painful step and every world-shaking contest by which mankind has worked and fought its way from savage isolation to organic social life.

So wrote an American judge, Mr. Justice Holmes, who among judges has the supreme place in any adequate anthology of English prose. But there are other judges who wrote with the memorable uniqueness of expression that is style. There is of course John Marshall, whom Judge Cardozo, in the exhilarating essay which gives its name to this volume, selects for the “type magisterial or imperative” in his critical and playful analysis of the varieties of judicial opinions. “We hear the voice of the law speaking by its consecrated ministers with the calmness and assurance that are born of a sense of mastery and power. Thus Marshall seemed to judge, and a hush falls upon us even now as we listen to his words. Those organ tones of his were meant to fill cathedrals. . . .” There is not space to follow Judge Cardozo in his serio-humorous categories of opinions and their exemplars. I have, besides, my own favorite. Who among non-lawyers writes as Judge Charles M. Hough wrote, and as Judge Learned Hand now writes? One might also be tempted to intrude on Judge Cardozo’s gentle silences about the versatile forms of judicial stuffiness. Unlike the new Earl Russell, judges are prone to “regard solemnity as a means of attaining truth.”

Deference for the well known shyness of the author has held this review much too long in check. If Judge Cardozo will publish, he must suffer the pains of public appreciation. Who better than he has demonstrated that law is stunted and undernourished by life, if it falls below the dignity of literature? The bar reads his opinions for pleasure, and even a disappointed litigant must feel, when Judge Cardozo writes, that a cause greater than his private interest prevailed. And so it has come to pass that the court over which Judge Cardozo presides enjoys an eminence second only to that of the Supreme Court of the United States. Its Chief must be included in the first half-dozen judges of the English-speaking world.

This volume gives the lay reader a taste of Judge Cardozo’s qualities--grace in the service of solidity, sensitiveness directing judgment, awareness of the limits of reason and of the subtle guises of self-deception. Judge Cardozo elsewhere has quoted Chesterton’s remark that the most important thing about a man is his philosophy. And this distillate of Judge Cardozo’s reflections is inevitably judicial self-revelation. These seven papers were born of distinct occasion; formally they have no common theme. And yet they have the unity of their common source, drawn as they are from the same deep brooding over law’s meanings and methods.

The enduring contributions of thinkers, maintains one of the acutest, are not systems but insights. Indeed, systems are apt to be overrefined elaborations of penetrating glimpses into truth. At all events, the two judges who in our day have given powerful direction to juristic thinking have done so not by heavy treatises on jurisprudence. Mr. Justice Holmes has gradually refashioned the whole outlook and methods of American legal thought through his essays no less than his opinions. The work of philosophic permeation begun by his master sixty years ago (and happily still continued in his opinions) is being carried on by New York’s Chief Judge, and again by essays. What is now set before the general reader, from a hint or suggestive phrase, to students (“The Game of the Law”) or to doctors (“What Medicine Can Do for the Law”), with all the seeming casualness of a luncheon (“The Comradeship of the Law”), or at a house-warming (“The Home of the Law”), is the stuff, also, of three small but not slight earlier volumes of essays “The Nature of the Judicial Process” (1921), “The Growth of the Law” (1924) and “The Paradoxes of Legal Science” (1928). Their common theme is the task that confronts the judge. But a candid scrutiny of what confronts the judge must include what confronts the law. The essay form is the fit instrument for a thinker whose concern is to lay bare the contending claims that seek the mediation of law, and to give some indication of how these processes of mediation in fact operate. For the essay is tentative, suggestive, contradictory and incomplete. It mirrors the perversities and zests and complexities of life.

“It is the first step in sociological wisdom,” according to Whitehead, “to recognize that the major advances in civilization are processes which all but wreck the societies in which they occur--like unto an arrow in the hand of a child. The art of free society consists first in the maintenance of the symbolic code; and secondly in fearlessness of revision, to secure that the code serves those purposes which satisfy an enlightened reason.” In the service of this “sociological wisdom” no one is more deeply enlisted than the author of these essays.

Felix Frankfurter was an associate justice on the United States Supreme Court.