408
THE GREEN BAG
part, English and American lawyers have felt with Lord Campbell that wide discretion in the application of legal rules " is only fit for the Star Chamber, which was called a Court of Criminal Equity."1 The purpose of matured law is not merely to do justice in each concrete cause but also to furnish a rule in advance of action by which men may be guided with assurance in the complicated transactions of modern business; to insure stability of industrial undertakings, to pro vide assured constancy of the conditions under which property is held and business is carried on.2 Courts are provided to settle disputes and to curb the anti-social members of society.3 They may conceivably perform these functions without law. But if they are to perform them according to law, they must perform them in a certain, uniform way. For certainty and uniformity are the essen tial attributes of law. And the same con siderations that require administration of justice according to law require the law not merely to afford rules for settling disputes but to furnish rules of action upon which men may rely with a certain assurance, and thus obviate disputes. " The public is more interested than it knows," says an Australian judge, " in maintaining the highest scientific standard in the administration of the law. The intellectual interest thus created in the profession is one of the best guarantees for purity of administration. Thoroughbred lawyers are supremely anxious to be right in their law. They may not always succeed in freeing themselves from class prejudices and party ties, but their interest in abstract law makes them generally incapable of showing favor to individuals."4 How far can we reach a proper balance between certainty and flexibility of applica tion to particular cases? In the first place we must not overvalue certainty. Absolute certainty is demanded chiefly with respect 1 Emperor of Austria v. Day, 3 De G. F. & J. 211, 238. 1 iee Small, General Sociology, 608.
- Henderson, Social Elements, 301 .
4 Richmond, J., quoted in Clark, Australian Con stitutional Law, 348.
to property. May it not be that the overprominence of property in our individualist legal philosophy has led us to exaggerate the importance of certainty? If, as Ihering tells us, the line between the old and the new in the progress of law is to be found in "lower valuing of property, higher valuing of the person,"1 it may well be that we shall abate somewhat the extreme insistence upon certainty in the interest of higher regard for the person in the adjustment of relations between man and man. Conceding, how ever, that our legal theory may come to admit a greater degree of flexibility in the application of law, the Anglo-Saxon repug nance to the deposit of unlimited power any where2 must prevent any complete or gen eral acceptance of the theory of equitable application. Hence for us a proper propor tion between the technical and the discre tionary' elements in the administration of justice will give chief weight to the former. The present leaning of the scale toward the latter may be counteracted by providing a more rational and flexible procedure and by bringing about a better adjustment between law and administration. Xo danger is to be apprehended from wide discretion in procedure if we insist that, however summary and however flexible the procedure, the result must accord with a definite and scientific substantive law. If in the final result the relations of the parties have been adjusted in strict accordance with the rules of sub stantive law, an oriental directness of procedure can hurt no one. If they have not, the most scientific system of pleading and practice has simply defeated its own end — the administration of justice according to law — and has been made by one or the other litigant an instrument of injustice, a weapon of anarchy. The demand for wider discretion in the courts may be satis fied legitimately in the direction of procedure, and it is not unlikely that relaxation at this point would remove much of the pressure 1 Ihering, Scherz und Ernst in derjurisprudenz (gth ed.), 418. 1 Miller, J., in Loan Ass'nt;. Topeka, 20 Wall, 655, 662.
