Wednesday, April 29, 2015

"Pangs of death and pangs of birth"

Over an entrance to the quadrangle
of the Yale School of Law, one can
make out an inscription carved al-
most a century ago. The law is a
living growth, not a changeless
code. Still the most illuminating
guest lectures in the school's fa-
mous Storrs series under this ae-
gis, were given in the 1920s by a
Columbia Law School grad, working
in New York, Benjamin N. Cardozo,
a descendant of Portuguese Sephar-
dic Jews, and a self-effacing bach-
elor, all his life. Those lectures,
on the Judicial Process, were met
with such respect that when the
Republican Herbert Hoover nominated
Cardozo to the Supreme Court of the
United States, they were cited in
his support even more strenuously
than his brilliant career on the
New York State Court of Appeals.

But he had second thoughts on his
Storrs Lectures; so he gave a sec-
ond series, which are bedrock tes-
taments in the life of the mind.

              I have become reconciled to uncertainty,
              because I have grown to see it as inev-
              itable. I have grown to see that the pro-
              cess [of jurisprudence] in its highest
              reaches is not discovery, but creation;
              and that the doubts and misgivings, the
              hopes and fears, are part of the travail
              of mind, the pangs of death and the pangs
              of birth, in which principles that have
              served their day expire, and new princip-
              les are born.

Justice Anthony Kennedy's candid
confession of trepidation, in yes-
terday's oral arguments at the Sup-
reme Court, in rendering a decision
he would perceive as at odds with
"millennia," called to mind the pangs
Cardozo not only felt, but explained
to him, and to all people within the
purview of our hybrid legal system.

Benjamin Cardozo is gentle, but he
is unfailingly not vague. Here, in
fraternal advice to Justice Kennedy,
he is saying there are times when
incremental redistributions of em-
pathy can no longer defend the af-
front of decrepit, incongruous rule.
The duty to act is not paradoxical,
it is preservative. 

I turned to his voice last evening,
and rested not on bedrock, but on
polishings of its grain.

              We may say that in the everyday trans-
              actions of life the average man is gov-
              erned, not by statute, but by common
              law, or at most by statute built upon
              a substratum of common law, modifying,
              in details only, the common law founda-
              tion. Failure to appreciate this truth
              has bred a distrust of a creative activ-
              ity which would otherwise have been seen
              to be appropriate and normal. A rule
              which in its origin was the creation of
              the courts themselves, and was supposed
              in the making to express the mores of
              the day, may be abrogated by courts when
              the mores have so changed that perpetua-
              tion of the rule would do violence to the
              social conscience .. If abrogation is per-
              missible in cases of extremity, still more
              plainly permissible at all times is con-
              tinuing adaptation to varying conditions.
              This is not usurpation. It is not even
              innovation. It is the reservation for our-
              selves of the same power of creation that
              built up the common law through its exer-
              cise by the judges of the past.

Who could make a secret of the
call to justice in one's time?

Benjamin N. Cardozo
The Growth of the Law
Yale University Press, 1924©

Henri Cartier-Bresson
Arrival of displaced persons
  New York


  1. Replies
    1. You're always kind to notice an effort, and I thank you. Here, of course, I agree, because it belongs to a beautiful, generous mind, walking with us: wonderful guidance we can draw on, against the shameful, the malignant clichés which always encrust the resistance to justice.