The Nature of the Judicial Process/Lecture III



Lecture III. The Method of Sociology. The Judge as a Legislator

IHAVE chosen these branches of the law merely as conspicuous illustrations of the application by the courts of the method of sociology. But the truth is that there is no branch where the method is not fruitful. Even when it does not seem to dominate, it is always in reserve. It is the arbiter between other methods, determining in the last analysis the choice of each, weighing their competing claims, setting bounds to their pretensions, balancing and moderating and harmonizing them all. Few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end. If they do not function, they are diseased. If they are diseased, theymust not propagate their kind. Sometimes they are cut out and extirpated altogether. Sometimes they are left with the shadow of continued life, but sterilized, truncated, impotent for harm.

We get a striking illustration of the force of logical consistency, then of its gradual breaking down before the demands of practical convenience in isolated or exceptional instances, and finally of the generative force of the exceptions as a new stock, in the cases that deal with the right of a beneficiary to recover on a contract. England has been logically consistent and has refused the right of action altogether. New York and most states yielded to the demands of convenience and enforced the right of action, but at first only exceptionally and subject to many restrictions. Gradually the exceptions broadened till today they have left little of the rule.[1] It survives chiefly in those cases where intention would be frustrated or convenience impaired by the extension of the right of action to others than the contracting parties.[2] Rules derived by a process of logical deduction from pre-established conceptions of contract and obligation have broken down before the slow and steady and erosive action of utility and justice.[3]

We see the same process at work in other fields. We no longer interpret contracts with meticulous adherence to the letter when in confict with the spirit. We read covenants into them by implication when we find them "instinct with an obligation" imperfectly expressed. "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal.”[4] Perhaps it is in the field of procedure that we have witnessed the chief changes; though greater ones must yet be wrought. Indictments and civil pleadings are viewed with indulgent eyes. Rulings upon questions of evidence are held with increasing frequency to come within the discretion of the judge presiding at the trial. Errors are no longer ground for the upsetting of judgments with the ensuing horror of new trials, unless the appellate court is satisfied that they have affected the result. Legislation has sometimes been necessary to free us from the old fetters. Sometimes the conservatism of judges has threatened for an interval to rob the legislation of its efficacy.[5] This danger was disclosed in the attitude of the courts toward the reforms embodied in codes of practice, in the days when they were first enacted.[6] Precedents established in those times exert an unhappy influence even now. None the less, the tendency today is in the direction of a growing liberalism. The new spirit has made its way gradually; and its progress, unnoticed step by step, is visible in retrospect as we look back upon the distance traversed. The old forms remain, but they are filled with a new content. We are getting away from what Ebrlich calls "die spielerische und die mathematische Entscheidung,"[7] the conception of a lawsuit either as a mathematical problem or as a sportsman's game. Our own Wigmore has done much to make that conception out of date.[8] We are thinking of the end which the law serves, and fitting its rules to the task of service.

This conception of the end of the law as determining the direction of its growth, which was Jhering's great contribution to the theory of jurisprudence,[9] finds its organon, its instrument, in the method of sociology. Not the origin, but the goal, is the main thing. There can be no wisdom in the choice of a path unless we know where it will lead. The teleological conception of his function must be ever in the judge's mind. This means, of course, that the juristic philosophy of the common law is at bottom the philosophy of pragmatism.[10] Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition. Only in determinizing how it functions we must not view it too narrowly. We must not sacrifice the general to the particular. We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance.[11] We must keep within those interstitial limits which precedent and custom and the long and silent and almost indefinable practice of other judges through the centuries of the common law have set to judge-made innovations. But within the limits thus set, within the range over which choice moves, the final principle of selection for judges, as for legislators, is one of fitness to an end. "Le but est la vie interne, l'âme cachée, mais génératrice, de tous les droits."[12] We do not pick our rules of law full-blossomed from the trees. Every judge consulting his own experience must be conscious of times when a free exercise of will, directed of set purpose to the furtherance of the common good, determined the form and tendency of a rule which at that moment took its origin in one creative act. Savigny's conception of law as something realized without struggle or aim or purpose, a process of silent growth, the fruition in life and manners of a people's history and genius, gives a picture incomplete and partial. It is true if we understand it to mean that the judge in shaping the rules of law must heed the mores of his day. It is one-sided and therefore false in so far as it implies that the mores of the day automatically shape rules which, full grown and ready made, are handed to the judge[13] Legal norms are confused with legal principles Entscheidungsnormen with Rechtssätze.[14] Law is, indeed, an historical growth, for it is an expression of customary morality which develops silently and unconsciously from one age to another. That is the great truth in Savigny's theory of its origin. But law is also a conscious or purposed growth, for the expression of customary morality will be false unless the mind of the judge is directed to the attainment of the moral end and its embodiment in legal forms.[15] Nothing less than conscious effort will be adequate if the end in view is to prevail. The standards or patterns of utility and morals will be found by the judge in the life of the community. They will be found in the same way by the legislator. That does not mean, however, that the work of the one any more than that of the other is a replica of nature's forms.

There has been much debate among foreign jurists whether the norms of right and useful conduct, the patterns of social welfare, are to be found by the judge in conformity with an objective or a subjective standard. Opposing schools of thought have battled for each view.[16] At times, the controversy has seemed to turn upon the use of words and little more. So far as the distinction has practical significance, the traditions of our jurisprudence commit us to the objective standard. I do not mean, of course, that this ideal of objective vision is ever perfectly attained. We cannot transcend the limitations of the ego and see anything as it really is. None the less, the ideal is one to be striven for within the limits of our capacity. This truth, when clearly perceived, tends to unify the judge's function. His duty to declare the law in accordance with reason and justice is seen to be a phase of his duty to declare it in accordance with custom. It is the customary morality of right-minded men and women which he is to enforce by his decree. A jurisprudence that is not constantly brought into relation to objective or external standards, incurs the risk of degenerating into what the Germans call "Die Gefühlsjurisprudenz," a jurisprudence of mere sentiment or feeling.[17] A judicial judgment, says Stammler, "should be a judgment of objective right, and no subjective and free opinion; a verdict and not a mere personal fiat. Evil stands the case when it is to be said of a judicial decree as the saying goes in the play of the 'Two Gentlemen of Verona' (Act I, sc. ii):

"'I have no other but a woman's reason; I think him so, because I think him so.'"[18]

Scholars of distinction have argued for a more subjective standard. "We all agree," says Professor Gray,[19] "that many cases should be decided by the courts on notions of right and wrong, and, of course, everyone will agree that a judge is likely to share the notions of right and wrong prevalent in the community in which he lives; but suppose in a case where there is nothing to guide him but notions of right and wrong, that his notions of right and wrong differ from those of the community—which ought he to follow—his own notions, or the notions of the community? Mr. Carter's theory [“Origin and Sources of Law," J. C. Carter] requires him to say that the judge must follow the notions of the community. I believe that he should follow his own notions." The hypothesis that Professor Gray offers us, is not likely to be realized in practice. Rare indeed must be the case when, with conflicting notions of right conduct, there will be nothing else to sway the balance. If, however, the case supposed were here, a judge, I think, would err if he were to impose upon the community as a rule of life his own idiosyncrasies of conduct or belief. Let us, suppose, for illustration, a judge who looked upon theatre-going as a sin. Would he be doing right if, in a field where the rule of law was still unsettled, he permitted this conviction, though known to be in conflict with the dominant standard of right conduct, to govern his decision? My own notion is that he would be under a duty to conform to the accepted standards of the community, the mores of the times. This does not mean, however, that a judge is powerless to raise the level of prevailing conduct. In one field or another of activity, practices in opposition to the sentiments and standards of the age may grow up and threaten to intrench themselves if not dislodged. Despite their temporary hold, they do not stand comparison with accepted norms of morals. Indolence or passivity has tolerated what the considerate judgment of the community condemns. In such cases, one of the highest functions of the judge is to establish the true relation between conduct and profession. There are even times, to speak somewhat paradoxically, when nothing less than a subjective measure will satisfy objective standards. Some relations in life impose a duty to act in accordance with the customary morality and nothing more. In those the customary morality must be the standard for the judge. Caveat emptor is a maxim that will often have to be followed when the morality which it expresses is not that of sensitive souls. Other relations in life, as, e.g., those of trustee and beneficiary, or principal and surety, impose a duty to act in accordance with the highest standards which a man of the most delicate conscience and the nicest sense of honor might impose upon himself. In such cases, to enforce adherence to those standards becomes the duty of the judge. Whether novel situations are to be brought within one class of relations or within the other must be determined, as they arise, by considerations of analogy, of convenience, of fitness, and of justice.

The truth, indeed, is, as I have said, that the distinction between the subjective or individual and the objective or general conscience, in the field where the judge is not limited by established rules, is shadowy and evanescent, and tends to become one of words and little more. For the casuist and the philosopher, it has its speculative interest. In the practical administration of justice, it will seldom be decisive for the judge. This is admitted by Brütt, one of the staunchest upholders of the theory of objective right.[20] The perception of objective right takes the color of the subjective mind. The conclusions of the subjective mind take the color of customary practices and objectified beliefs. There is constant and subtle interaction between what is without and what is within. We may hold, on the one side, with Tarde and his school, that all social innovations come "from individual inventions spread by imitation,"[21] or on the other side, with Durkheim and his school, that all such innovations come "through the action of the social mind."[22] In either view, whether the impulse spreads from the individual or from society, from within or from without, neither the components nor the mass can work in independence of each other. The personal and the general mind and will are inseparably united. The difference, as one theory of judicial duty or the other prevails, involves at most a little change of emphasis, of the method of approach, of the point of view, the angle, from which problems are envisaged. Only dimly and by force of an influence subconscious, or nearly so, will the difference be reflected in the decisions of the courts.

My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired.[23] One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philosophy when the motive power has been theirs. But symmetrical development may be bought at too high a price. Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after him will set out upon their journey.

If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here, indeed, is the point of contact between the legislator's work and his. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart. He must learn it for himself as he gains the sense of fitness and proportion that comes with years of habitude in the practice of an art. Even within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law. "Il ne peut intervenir," says Charmont,[24] "que pour suppléer les sources formelles, mais il n'a pas, dans cette mesure même, toute latitude pour créer des règles de droit. Il ne peut ni faire échec aux principes généraux de notre organisation juridique, explicitement on implicitement consacrés, ni formuler une réglementation de detail pour l'exercise de certains droits, en établissant des délais, des formalités, des règles de publicité."[25] None the less, within the confides of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.

There is in truth nothing revolutionary or even novel in this view of the judicial function.[26] It is the way that courts have gone about their business for centuries in the development of the common law. The difference from age to age is not so much in the recognition of the need that law shall conform itself to an end. It is rather in the nature of the end to which there has been need to conform. There have been periods when uniformity, even rigidity, the elimination of the personal element, were felt to be the paramount needs.[27] By a sort of paradox, the end was best served by disregarding it and thinking only of the means. Gradually the need of a more flexible system asserted itself. Often the gap between the old rule and the new was bridged by the pious fraud of a fiction.[28] The thing which concerns us here is that it was bridged whenever the importance of the end was dominant. Today the use of fictions has declined; and the springs of action are disclosed where once they were concealed. Even now, they are not fully known, however, even to those whom they control. Much of the process has been unconscious or nearly so. The ends to which courts have addressed themselves, the reasons and motives that have guided them, have often been vaguely felt, intuitively or almost intuitively apprehended, seldom explicitly avowed. There has been little of deliberate introspection, of dissection, of analysis, of philosophizing. The result has been an amalgam of which the ingredients were unknown or forgotten. That is why there is something of a shock in the discovery that legislative policy has made the compound what it is.[29] "We do not realize," says Holmes,[30] "how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self-evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer's every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors." "Why," he continues, "is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. Why is a man at liberty to set up a business which he knows will ruin his neighbor? It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places. . . . I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as have I said."

Not only in our common law system has this conception made its way. Even in other systems where the power of judicial initiative is more closely limited by statute, a like development is in the air. Everywhere there is growing emphasis on the analogy between the function of the judge and the function of the legislator. I may instance François Gény who has developed the analogy with boldness and suggestive power.[31] "A priori," he says, "the process of research (la recherche), which is imposed upon the judge in finding the law seems to us very analogous to that incumbent on the legislator himself. Except for this circumstance, certainly not negligible, and yet of secondary importance, that the process is set in motion by some concrete situation, and in order to adapt the law to that situation, the considerations which ought to guide it are, in respect of the final end to be attained, exactly of the same nature as those which ought to dominate legislative action itself, since it is a question in each case, of satisfying, as best may be, justice and social utility by an appropriate rule. Hence, I will not hesitate in the silence or inadequacy of formal sources, to indicate as the general line of direction for the judge the following: that he ought to shape his judgment of the law in obedience to the same aims which would be those of a legislator who was proposing to himself to regulate the question. None the less, an important distinction separates here judicial from legislative activity. While the legislator is not hampered by any limitations in the appreciation of a general situation, which he regulates in a manner altogether abstract, the judge, who decides in view of particular cases, and with reference to problems absolutely concrete, ought, in adherence to the spirit of our modern organization, and in order to escape the dangers of arbitrary action, to disengage himself, so far as possible, of every influence that is personal or that comes from the particular situation which is presented to him, and base his judicial decision on elements of an objective nature. And that is why the activity which is proper to him has seemed to me capable of being justly qualified: free scientific research, libre recherche scientifique: free, since it is here removed from the action of positive authority; scientific, at the same time, because it can find its solid foundations only in the objective elements which science alone is able to reveal to it."[32]

The rationale of the modern viewpoint has been admirably expressed by Vander Eycken[33] in his "Méthode positive de l'Interprétation juridique":[34] "Formerly men looked upon law as the product of the conscious will of the legislator. Today they see in it a natural force. If, however, we can attribute to law the epithet ‘natural,’ it is, as we have said, in a different sense from that which formerly attached to the expression ‘natural law.’ That expression then meant that nature had imprinted in us, as one of the very elements of reason, certain principles of which all the articles of the code were only the application. The same expression ought to mean today that law springs from the relations of fact which exist between things. Like those relations themselves, natural law is in perpetual travail. It is no longer in texts or in systems derived from reason that we must look for the source of law; it is in social utility, in the necessity that certain consequences shall be attached to given hypotheses. The legislator has only a fragmentary consciousness of this law; he translates it by the rules which he prescribes. When the question is one of fixing the meaning of those rules, where ought we to search? Manifestly at their source; that is to say, in the exigencies of social life. There resides the strongest probability of discovering the sense of the law. In the same way when the question is one of supplying the gaps in the law, it is not of logical deductions, it is rather of social needs, that we are to ask the solution."

Many of the gaps have been filled in the development of the common law by borrowing from other systems. Whole titles in our jurisprudence have been taken from the law of Rome. Some of the greatest of our judges—Mansfield in England, Kent and Story here—were never weary of supporting their judgments by citations from the Digest. We should bc traveling too far afield if we were to attempt an estimate of the extent to which the law of Rome has modified the common law either in England or with us.[35] Authority it never had. The great historic movement of the Reception did not touch the British Isles.[36] Analogies have been supplied. Lines of thought have been suggested. Wise solutions have been offered for problems otherwise insoluble. None the less, the function of the foreign system has been to advise rather than to command. It has not furnished a new method. It has given the raw material to be utilized by methods already considered—the methods of philosophy and history and sociology—–in the moulding of their products. It is only one compartment in the great reservoir of social experience and truth and wisdom from which the judges of the common law must draw their inspiration and their knowledge.

In thus recognizing, as I do, that the power to declare the law carries with it the power, and within limits the duty, to make law when none exists, I do not mean to range myself with the jurists who seem to hold that in reality there is no law except the decisions of the courts. I think the truth is midway between the extremes that are represented at one end by Coke and Hale and Blackstone and at the other by such authors as Austin and Holland and Gray and Jethro Brown. The theory of the older writers was that judges did not legislate at all. A preexisting rule was there, imbedded, if concealed, in the body of the customary law. All that the judges did, was to throw off the wrappings, and expose the statue to our view.[37] Since the days of Bentham and Austin, no one, it is believed, has accepted this theory without deduction or reserve, though even in modern decisions we find traces of its lingering influence. Today there is rather danger of another though an opposite error. From holding that the law is never made by judges, the votaries of the Austinian analysis have been led at times to the conclusion that it is never made by anyone else. Customs, no matter how firmly established, are not law, they say, until adopted by the courts.[38] Even statutes are not law because the courts must fix their meaning. That is the view of Gray in his "Nature and Sources of the Law."[39] "The true view, as I submit," he says, "is that the Law is what the Judges declare; that statutes, precedents, the opinions of learned experts, customs and morality are the sources of the Law."[40] So, Jethro Brown in a paper on “Law and Evolution,"[41] tells us that a statute, till construed, is not real law. It is only "ostensible" law. Real law, he says, is not found anywhere except in the judgment of a court. In that view, even past decisions are not law. The courts may overrule them. For the same reason present decisions are not law, except for the parties litigant. Men go about their business from day to day, and govern their conduct by an ignis fatuus. The rules to which they yield obedience are in truth not law at all. Law never is, but is always about to be. It is realized only when embodied in a judgment, and in being realized, expires. There are no such things as rules or principles: there are only isolated dooms.

A definition of law which in effect denies the possibility of law since it denies the possibility of rules of general operation,[42] must contain within itself the seeds of fallacy and error. Analysis is useless if it destroys what it is intended to explain. Law and obedience to law are facts confirmed every day to us all in our experience of life. If the result of a definition is to make them seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities. The outstanding truths of life, the great and unquestioned phenomena of society, are not to be argued away as myths and vagaries when they do not fit within our little moulds. If necessary, we must remake the moulds. We must seek a conception of law which realism can accept as true. Statutes do not cease to be law because the power to fix their meaning in case of doubt or ambiguity has been confided to the courts. One might as well say for like reasons that contracts have no reality as expressions of a contracting will. The quality of law is not withdrawn from all precedents, however well established, because courts sometimes exercise the privilege of overruling their own decisions. Those, I think, are the conclusions to which a sense of realism must lead us. No doubt there is a field within which judicial judgement moves untrammeled by fixed principles. Obscurity of statute or of precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function. In such cases, all that the parties to the controversy can do is to forecast the declaration of the rule as best they can, and govern themselves accordingly. We must not let these occasional and relatively rare instances blind our eyes to the innumerable instances where there is neither obscurity nor collision nor opportunity for diverse judgment. Most of us live our lives in conscious submission to rules of law, yet without necessity of resort to the courts to ascertain our rights and duties. Lawsuits are rare and catastrophic experiences for the vast majority of men, and even when the catastrophe ensues, the controversy relates most often not to the law, but to the facts. In countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps. We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful. I think the difficulty has its origin in the failure to distinguish between right and power, between the command embodied in a judgment and the jural principle to which the obedience of the judge is due. Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, by that abuse of power, they violate the law. If they violate it willfully, i.e., with guilty and evil mind, they commit a legal wrong, and may be removed or punished even though the judgments which they have rendered stand. In brief, there are jural principles which limit the freedom of the judge,[43] and, indeed, in the view of some writers, which we do not need to endorse, the freedom of the state itself.[44] Life may be lived, conduct may be ordered, it is lived and ordered, for unnumbered human beings without bringing them within the field where the law can be misread, unless indeed the misreading be accompanied by conscious abuse of power. Their conduct never touches the borderland, the penumbra, where controversy begins. They go from birth to death, their action restrained at every turn by the power of the state, and not once do they appeal to judges to mark the boundaries between right and wrong. I am unable to withhold the name of law from rules which exercise this compulsion over the fortunes of mankind.[45]

The old Blackstonian theory of pre-existing rules of law which judges found, but did not make, fitted in with a theory still more ancient, the theory of a law of nature. The growth of that conception forms a long and interesting chapter in the history of jurisprudence and political science.[46] The doctrine reached its highest development with the Stoics, has persisted in varying phases through the centuries, and imbedding itself deeply in common forms of speech and thought, has profoundly influenced the speculations and ideals of men in statecraft and in law. For a time, with the rise and dominance of the analytical school of jurists, it seemed discredited and abandoned.[47] Recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives in little more than name.[48] The law of nature is no longer conceived of as something static and eternal. It does not override human or positive law. It is the stuff out of which human or positive law is to be woven, when other sources fail.[49] "The modern philosophy of law comes in contact with the natural law philosophy in that the one as well as the other seeks to be the science of the just. But the modern philosophy of law departs essentially from the natural law philosophy in that the latter seeks a just, natural law outside of positive law, while the new philosophy of law desires to deduce and is the element of the just in and out of the positive law—out of what it is and of what it is becoming. The natural law school seeks an absolute, ideal law, ‘natural law,’ the law κατ’ ἐξοχήν, by the side of which positive law has only secondary importance. The modern philosophy of law recognizes that there is only one law, the positive law, but it seeks its ideal side, and its enduring idea."[50] I am not concerned to vindicate the accuracy of the nomenclature by which the dictates of reason and conscience which the judge is under a duty to obey, are given the name of law before he has embodied them in a judgment and set the imprimatur of the law upon them.[51] I shall not be troubled if we say with Austin and Holland and Gray and many others that till then they are moral precepts, and nothing more. Such verbal disputations do not greatly interest me. What really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience. I suppose it is true in a certain sense that this duty was never doubted.[52] One feels at times, however, that it was obscured by the analytical jurists, who, in stressing verbal niceties of definition, made a corresponding sacrifice of emphasis upon the deeper and finer realities of ends and aims and functions. The constant insistence that morality and justice are not law, has tended to breed distrust and contempt of law as something to which morality and justice are not merely alien, but hostile. The new development of “naturrecht” may be pardoned infelicities of phrase, if it introduces us to new felicities of methods and ideals. Not for us the barren logomachy that dwells upon the contrasts between law and justice, and forgets their deeper harmonies. For us rather the trumpet call of the French “code civil”:[53] "Le juge, qui refusera de juger, sous prétexte du silence, de l'obscurité ou de l'insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice.”[54] “It is the function of our courts,” says an acute critic, “to keep the doctrines up to date with the mores by continual restatement and by giving them a continually new content. This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial office its highest honor; and no brave and honest judge shirks the duty or fears the peril.”[55]

You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the constitution has lodged it in the judges. If they are to fulfill their function as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and readjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom. The recognition of this power and duty to shape the law in conformity with the customary morality, is something far removed from the destruction of all rules and the substitution in every instance of the individual sense of justice, the arbitrium boni viri.[56] That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law. The method of sociology, even though applied with greater freedom than in the past, is heading us toward no such cataclysm. The form and structure of the organism are fixed. The cells in which there is motion do not change the proportions of the mass. Insignificant is the power of innovation of any judge, when compared with the bulk and pressure of the rules that hedge him on every side. Innovate, however, to some extent, he must, for with new conditions there must be new rules. All that the method of sociology demands is that within this narrow range of choice, he shall search for social justice. There were stages in the history of the law when a method less psychological was needed. The old quantitative tests of truth did not fail in their day to serve the social needs.[57] Their day has long passed. Modern juristic thought, turning in upon itself, subjecting the judicial process to introspective scrutiny, may have given us a new terminology and a new emphasis. But in truth its method is not new. It is the method of the great chancellors, who without sacrificing uniformity and certainty, built up the system of equity with constant appeal to the teachings of right reason and conscience. It is the method by which the common law has renewed its life at the hands of its great masters—the method of Mansfield and Marshall and Kent and Holmes.

There have, indeed, been movements, and in our own day, to make the individual sense of justice in law as well as in morals the sole criterion of right and wrong. We are invited, in Gény's phrase, to establish a system of “juridical anarchy” at worst, or of “judicial impressionism” at best.[58] The experiment, or something at least approaching it, was tried not long ago in France. There are sponsors of a like creed among the critics of our own courts.[59] The French experiment, which has become known as "le phénomène Magnaud," is the subject of a chapter in the epilogue to the last edition, published in 1919, of Gény's brilliant book.[60] Between 1889 and 1904, the tribunal of the first instance of Châtcau-Thierry, following the lead of its chief, le President Magnaud, initiated a revolt against the existing order in jurisprudence. Its members became known as the good judges, “les bons juges.” They seem to have asked themselves in every instance what in the circumstances before them a good man would wish to do, and to have rendered judgment accordingly. Sometimes this was done in the face of inconsistent statutes. I do not profess to know their work at first hand. Gény condemns it, and says the movement has spent its force. Whatever the merits or demerits of such impressionism may be, that is not the judicial process as we know it in our law.[61] Our jurisprudence has held fast to Kant's categorical imperative, “Act on a maxim which thou canst will to be law universal.” It has refused to sacrifice the larger and more inclusive good to the narrower and smaller. A contract is made. Performance is burdensome and perhaps oppressive. If we were to consider only the individual instance, we might be ready to release the promisor. We look beyond the particular to the universal, and shape our judgment in obedience to the fundamental interest of society that contracts shall be fulfilled. There is a wide gap between the use of the individual sentiment of justice as a substitute for law, and its use as one of the tests and touchstones in construing or extending law. I think the tone and temper in which the modern judge should set about his task are well expressed in the first article of the Swiss Civil Code of 1907, an article around which there has grown up a large body of juristic commentary. “The statute,” says the Swiss Code, “governs all matters within the letter or the spirit of any of its mandates. In default of an applicable statute, the judge is to pronounce judgment according to the customary law, and in default of a custom according to the rules which he would establish if he were to assume the part of a legislator. He is to draw his inspiration, however, from the solutions consecrated by the doctrine of the learned and the jurisprudence of the courts—par la doctrine et la jurisprudence."[62] There, in the final precept, is the gist of the difference between "le phénomène Magnaud," and justice according to law. The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life."[63] Wide enough in all conscience is the field of discretion that remains.

  1. Seaver v. Ransom, 224 N. Y. 233.
  2. Fosmire v. National Surety Co., 229 N. Y. 44.
  3. Cf. Duguit, op. cit., Continental Legal Hist. Series, vol. XI, p. 120, sec. 36.
  4. Wood v. Duff Gordon, 322 N. Y. 88.
  5. Kelso v. Ellis, 224 N. Y. 528, 536, 537; California Packing Co. v. Kelly S. & D. Co., 228 N. Y. 49.
  6. Pound, "Common Law and Legislation," 21 Harvard L. R. 383, 387.
  7. Ehrlich, "Die juristische Logik," p. 295; cf. pp. 294, 296.
  8. See his Treatise on Evidence, passim.
  9. Jhering, "Zweck im Recht," 5 Modern Legal Philosophy Series; also Gény, op. cit., vol. I, p. 8; Pound, "Scope and Purpose of Sociological Jurisprudence," 25 Harvard L. R. 140, 141, 145; Pound, "Mechanical Jurisprudence," 8 Columbia L. R. 603, 610.
  10. 10 Pound, "Mechanical Jurisprudence," 8 Columbia L. R. 603, 609.
  11. Cf. Brütt, supra, pp. 161, 163.
  12. Saleilles, “De la Personnalité Juridique," p. 497. "Avec Jhering nous resterons des réalistes, mais avec lui aussi nous serons des idéalistes, attachés à l'idée de but et de finalité sociale."—Saleilles, p. 516.
  13. Cf. Ehrlich, "Grundlegung der Soziologie des Rechts," pp. 366, 368; Pound, "Courts and Legislation," 9 Modern Legal Philosophy Series, p. 212; Gray, "Nature and Sources of Law," secs. 628, 650; Vinogradoff, "Outlines of Historical Jurisprudenice," p. 135.
  14. Ehrlich, supra.
  15. Cf. Gény, op. cit., vol. I, p. 263, sec. 92.
  16. For a clear and interesting summary, see Brütt, supra, p. 101, et seq.; cf. Gény, op. cit., vol. I, p. 221; and contrast Flavius, op. cit., p. 87.
  17. Brütt, supra, pp. 201-222.
  18. Stammler, "Richtiges Recht," s. 162, quoted by Brütt, supra, p. 104.
  19. "Nature and Sources of Law," sec. 610.
  20. Supra, p. 139.
  21. Barnes, "Durkheim's Political Theory," 35 Pol. Science Quarterly, p. 239.
  22. Ibid.; cf. Barker, "Political Thought from Spencer to Today," pp. 151, 153, 175.
  23. Vander Eycken, “Méthode Positive de l'Interprétation juridique," p. 59; Ehrlich, "Die juristische Logik," p. 187
  24. "La Renaissance du droit naturel," p. 181.
  25. "He may intervene only to supplement the formal authorities, and even in that field there are limits to his discretion in establishing rules of law. He may neither restrict the scope of the general principles of our juridical organization, explicitly implicitly sanctioned, may he lay down detailed regulations governing the exercise of giver rights, by introducing delays, formalities, or rules of publicity."—Charmont, supra, transl. in 7 Modern Legal Philosophy Scries, p. 120, sec. 91. Cf. Jhering, "Law as a Means to an End" (5 Modern Legal Philosophy Series; Introduction by W. M. Geldart, p. xlvi): "The purposes of law are embodied in legal conceptions which must develop in independence and cannot at every step be called upon to conform to particular needs. Otherwise system and certainty would be unattainable. But this autonomy of law, if it were only because of excess or defects of logic, will lead to a divergence between law and the needs of life, which from time to time calls for correction. . . . How far if at all the needful changes can or ought to be carried out by judicial decisions of the development of legal theory, and how far the intervention of the legislator will be called for, is a matter that will vary from one legal territory to another according to the accepted traditions as the binding force of precedents, the character of the enacted law, and the wider of narrower liberty of judicial interpretation.”
  26. Cf. Berolzheimer, 9 Modern Legal Philosophy Series, pp. 167, 168.
  27. Flavius, supra, p. 49; 2 Pollock and Maitland, "History of English Law," p. 561.
  28. Smith, "Surviving Fictions," 27 Yale L. J. 147,317; Ehrlich, supra, pp. 227, 228; Saleilles, "De la Personnalité Juridique," p. 382.
  29. "Lorsque la loi sanctionne certains rapports juridiques, nà l'exclusion de tels autres qui en différent, il arrive, pour tels ou tels rapports de droit plus ou moins similaires auxquels on sent le besoin d'étendre la protection légale, que l'on est tenté de procéder, soit par analogie, soit par fiction. La fiction est une analogie ua peu amplifiée, ou plutôt non dissimulée."—Saleilles, supra.
  30. "The Path of the Law," 10 Harvard L. R. 466.
  31. Op. cit., vol. II, p. 77.
  32. Ehrlich has the same thought, "Die juristische Logik," p. 312.
  33. Professor in the University of Brussels.
  34. P. 401, sec. 239.
  35. On this subject, see Sherman, "Roman Law in the Modem World"; Scrutton, "Roman Law Influence," 1 Select Essays in Anglo-Am. Legal Hist. 208.
  36. 1 Pollock and Maitland's "History of English Law," 88, 114; Maitland's "Introduction to Gierke," supra, p. xii.
  37. Cf. Pound, 27 Harvard L. R. 731, 733.
  38. Austin, "Jurisprudence," vol. I, 37, 104; Holland, "Jurisprudence," p. 54; W. Jethro Brown, "The Austinian Theory of Law," p. 311.
  39. Sec. 602.
  40. Cf. Gray, supra, secs. 276, 366, 369.
  41. 29 Yale L. J. 394.
  42. Cf. Beale, "Conflict of Laws," p. 753, sec. 129.
  43. Salmond, "Jurisprudence," p. 157; Sadler, "Relation of Law to Custom," pp. 4, 6, 50; F. A. Geer, 9 L. Q. R. 153.
  44. Duguit, "Law and The State," 31 Harvard L. R. 1; Vinogradoff, “The Crisis of Modern Jurisprudence," 29 Yale L. J. 312; Laski, "Authority in the Modern State," pp. 41, 42.
  45. "Law is the body of general principles and of particular rules in accordance with which civil rights are created and regulated, and wrongs prevented or redressed" (Beale, "Conflict of Laws," p. 132, sec. 114).
  46. Salmond, "The Law of Nature," 11 L. Q. R. 121; Pollock, "The History of the Law of Nature," 1 Columbia L. R. II; 2 Lowell, "The Government of England," 477, 478; Maitland's "Collected Papers," p. 23.
  47. Cf. Ritchie, "Natural Rights."
  48. Pound, 25 Harvard L. R. 162; Charmont, "La Renaissance du droit naturel," passim; also transl., 7 Modern Legal Philosophy Series, 106, 11; Demogue, "Analysis of Fundamental Notions," 7 Modern Legal Philosophy Series, p. 373, sec. 212; Laski, "Authority in the Modern State," p. 64.
  49. Vander Eycken, op. cit., p. 401.
  50. Berolzheimer, "System der Rechts und Wirthschaftsphilosophic," vol. II, 27, quoted by Pound, "Scope and Purpose of Sociological Jurisprudence," 24 Harvard L. R. 607; also Isaacs, "The Schools of Jurisprudence," 31 Harvard L. R. 373, 389; and for the mediaeval view, Maitland's "Gierke, Political Theories of the Middle Age," pp. 75, 84, 93, 173.
  51. Holland, "Jurisprudence," 54.
  52. See Gray, supra, p. 286, secs. 644, 645.
  53. Art. 4; Gray, supra, sec. 642; Gény, op. cit., vol. II, p. 75, sec. 155; Gnaeus Flavius, "Der Kampf um die Rechtswissenschaft," p. 14.
  54. “The judge who shall refuse to give judgment under pretext of the silence, of the obscurity, or of the inadequacy of the law, shall be subject to prosecution as guilty of a denial of justice.”
  55. Arthur L. Corbin, 39 Yale L. J. 771.
  56. Cf. Standard Chemical Corp. v. Waugh Corp., 231 N. Y. 51, 55. 136
  57. Flavius, "Der Kampf um die Rechtswissenschaft, pp. 48, 49; Ehrlich, "Die juristische Logik," pp. 291.
  58. Gény, op. cit., ed. of 1919, vol. II, p. 288, sec. 196; p. 305, sec. 200.
  59. Bruce, "Judicial Buncombe in North Dakota and Other States," 88 Central L. J. 136; Judge Robinson's Reply, 88 id. 155; "Rule and Discretion in the Administration of Justice, " 33 Harvard L. R. 792.
  60. Gény, op. cit., ed. of 1919, vol. II, p. 287, sec, 196, et seq.
  61. Salmond, "Jurisprudence," pp. 19, 20,
  62. Gény, op. cit., II, p. 213; also Perick, "The Swiss Code," XI, Continental Legal Hist. Series, p. 238, sec, 5.
  63. Gény, op. cit., II, p. 303, sec. 200.