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?
Alan Jay Lerner '35 lyricist My Fair Lady 1956 Crane Brinton The Anatomy of Revolution Vintage Books Edmund S. Morgan The Stamp Act Crisis University of North Carolina Press Thomas S. Kuhn The Structure of Scientific Revolutions University of Chicago Press James Obergefell plaintiff Obergefell v. Hodges Supreme Court of the United States 28 April 2015
Unlike, say, Bertrand Russell, who turned to philosophy with hope of finding certainty where previously he had felt only doubt, Wittgenstein was drawn to it by a compulsive tendency to be struck by .. questions. Philosophy, one might say, came to him, not he to philosophy. Its dilemmas were experienced by him as unwelcome intrusions, enigmas, which forced themselves upon him and held him captive, unable to get on with everyday life until he could dis- pel them with a satisfactory solution.
A man will be imprisoned in a room with a door that's unlocked and o- pens inwards, as long as it does not occur to him to pull rather than to push. One might say, genius is talent exercised with courage. Ludwig Wittgenstein rowing in the year at his fjord in Skjolden, 1913, his refuge from Cambridge and Vienna, before his enlistment. Remarks in his note- books, 1940 and 1941. Ludwig Wittgenstein Culture and Value Peter Winch translation University of Chicago Press op. cit.