It comes down to this. There are certain forms of conduct which at any given place and epoch are commonly accepted under the combined influence of reason, practice and tradition, as moral or immoral. ... Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate. In saying this, we are not to blind ourselves to the truth that uncertainty is far from banished. Morality is not merely different in different communities. Its level is not the same for all the component groups within the same community. A choice must still be made between one group standard and another. We have still to face the problem, at which one of these levels does the social pressure become strong enough to convert the moral norm into a jural one? All that we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest. The law will not hold the crowd to the morality of saints and seers. It will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous.
More from Benjamin N. Cardozo
Our course of advance... is neither a straight line nor a curve. It is a series of dots and dashes.
Permalink to quote #36 A judge is to give effect in general not to his own scale of values, but to the scale of values revealed to him in his readings of the social mind. ... Objecti…
Permalink to quote #38 The state in commissioning its judges has commanded them to judge, but neither in constitution nor in statute has it formulated a code to define the manner of …
Permalink to quote #35