Ruling With The Zeitgeist...
I have no quarrel, therefore, with the doctrine that judges
ought to be in sympathy with the spirit of their times. Alas!
assent to such a generality does not carry us far upon the road
to truth. In every court there are likely to be as many estimates
of the “Zeitgeist” as there are judges on its bench.
Of the power of favor or prejudice in any sordid or vulgar or
evil sense, I have found no trace, not even the faintest, among
the judges whom I have known. But every day there is borne in
on me a new conviction of the inescapable relation between the
truth without us and the truth within. The spirit of the age,
as it is revealed to each of us, is too often only the spirit
of the group in which the accidents of birth or education or
occupation or fellowship have given us a place. No effort or
revolution of the mind will overthrow utterly and at all times
the empire of these subconscious loyalties. “Our beliefs
and opinions,” says James Harvey Robinson, “like
our standards of conduct come to us insensibly as products of
our companionship with our fellow men, not as results of our
personal experience and the inferences we individually make
from our own observations. We are constantly misled by our extraordinary
faculty of ‘rationalizing’—that is, of devising
plausible arguments for accepting what is imposed upon us by
the traditions of the group to which we belong. We are abjectly
credulous by nature, and instinctively accept the verdicts of
the group. We are suggestible not merely when under the spell
of an excited mob or a fervent revival, but we are ever and
always listening to the still small voice of the herd, and are
ever ready to defend and justify its instructions and warnings,
and accept them as the mature results of our own reasoning.”
This was written, not of judges specially, but of men and women
of all classes. The training of the judge, if coupled with what
is styled the judicial temperament, will help in some degree
to emancipate him from the suggestive power of individual disliltes
and prepossessions. It will help to broaden the group to which
his subconscious loyalties are due. Never will these loyalties
be utterly extinguished while human nature is what it is. We
may wonder sometimes how from the play of all these forces of
individualism, there can come anything coherent, anything but
chaos and the void. Those are the moments in which we exaggerate
the elements of difference. In the end there emerges something
which has a composite shape and truth and order. It has been
said that “History, like mathematics, is obliged to assume
that eccentricities more or less balance each other, so that
something remains constant at last.” The like is true
of the work of courts. The eccentricities of judges balance
one another. One judge looks at problems from the point of view
of history, another from that of philosophy, another from that
of social utility, one is a formalist, another a latitudinarian,
one is timorous of change, another dissatisfied with the present;
out of the attrition of diverse minds there is beaten something
which has a constancy and uniformity and average value greater
than its component elements. The same thing is true of the work
of juries. I do not mean to suggest that the product in either
case does not betray the flaws inherent in its origin. The flaws
are there as in every human institution. Because they are not
only there but visible, we have faith that they will be corrected.
There is no assurance that the rule of the majority will be
the expression of perfect reason when embodied in constitution
or in statute. We ought not to expect more of it when embodied
in the judgments of the courts. The tide rises and falls, but
the sands of error crumble.
The work of a judge is in one sense enduring and in another
sense ephemeral. What is good in it endures. What is erroneous
is pretty sure to perish. The good remains the foundation on
which new structures will be built. The bad will be rejected
and cast off in the laboratory of the years. Little by little
the old doctrine is undermined. Often the encroachments are
so gradual that their significance is at first obscured. Finally
we discover that the contour of the landscape has been changed,
that the old maps must be cast aside, and the ground charted
anew. The process, with all its silent yet inevitable power,
has been described by Mr. Henderson with singular felicity:
“When an adherent of a systematic faith is brought continuously
in touch with influences and exposed to desires inconsistent
with that faith, a process of unconscious cerebration may take
place, by which a growing store of hostile mental inclinations
may accumulate, strongly motivating action and decision, but
seldom emerging clearly into consciousness. In the meantime
the formulas of the old faith are retained and repeated by force
of habit, until one day the realization comes that conduct and
sympathies and fundamental desires have become so inconsistent
with the logical framework that it must be discarded. Then begins
the task of building up and rationalizing a new faith.”
Ever in the making, as law develops through the centuries, is
this new faith which silently and steadily effaces our mistakes
and eccentricities. I sometimes think that we worry ourselves
overmuch about the enduring consequences of our errors. They
may work a little confusion for a time. In the end, they will
be modified or corrected or their teachings ignored. The future
takes care of such things. In the endless process of testing
and retesting, there is a constant rejection of the dross, and
a constant retention of whatever is pure and sound and fine.
The future, gentlemen, is yours. We have been called to do our
parts in an ageless process. Long after I am dead and gone,
and my little part in it is forgotten, you will be here to do
your share, and to carry the torch forward. I know that the
flame will burn bright while the torch is in your keeping.
Benjamin Cardozo (1870-1938) was a well-known American lawyer
and Supreme Court Justice, remembered for his significant influence
on the development of American common law in the 20th century,
in addition to his modesty, philosophy, and prose style. A Sephardic
Jew of Portuguese descent, some consider him the first Hispanic
justice on
the Supreme Court.
