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10 Cardozo L. Rev. 3 (1988-1989)
Reason, Passion, and the Progress of the Law

handle is hein.journals/cdozo10 and id is 21 raw text is: REASON, PASSION, AND THE PROGRESS
OF THE LAW
THE FORTY-SECOND ANNUAL BENJAMIN N. CARDOZO LECTURE*
William J. Brennan, Jr.**
It is with a deep sense of humility that I take on the task of
delivering a lecture in honor of Justice Cardozo. To reread The Na-
ture of the Judicial Process,' his classic series of lectures delivered at
the Yale Law School some sixty-five years ago, is to realize that one
person was able, in a slim volume of near-lyric prose, to alter the
course of American legal thought. I profess no comparable ambition
in my remarks this evening. It is challenge enough to revisit some of
the territory that Cardozo staked out, and to consider what new vistas
his efforts have opened to us.
It was Cardozo who, more than any other observer, awakened
America to the human reality of the judicial process. From him we
learned that judging could not properly be characterized as simply the
application of pure reason to legal problems, nor, at the other ex-
treme, as the application of the personal will or passion of the judge.
Cardozo drew our attention to a complex interplay of forces-rational
and emotional, conscious and unconscious-by which no judge could
remain unaffected. It is my thesis that this interplay of forces, this
internal dialogue of reason and passion, does not taint the judicial
process, but is in fact central to its vitality. This is particularly true, I
think, in constitutional interpretation. Thus, after discussing the na-
ture of this dialogue, I shall attempt to convince you of its importance
by discussing its role in the interpretation of the due process clause.2
My discussion begins, however, with Cardozo. Cardozo's great
contribution came not from any logical advance in abstract theory,
but from honest reflection and candid confession of the way in which
he, as a judge, reached his decisions. He began by asking:
What is it that I do when I decide a case? ... If a precedent is
applicable, when do I refuse to follow it? If no precedent is appli-
cable, how do I reach the rule that will make a precedent for the
future? ... At what point shall the quest [for logical consistency]
be halted by some discrepant custom, by some consideration of the
* Delivered at the Association of the Bar of the City of New York (Sept. 17, 1987).
* Associate Justice of the Supreme Court of the United States.
I B. Cardozo, The Nature of the Judicial Process (1921).
2 U.S. Const. amend. V.

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