according to law: (1) Finding the law, ascertaining which of the many
rules in the legal system is to be applied, or, if none is applicable,
reaching a rule for the cause (which may or may not stand as a rule
for subsequent cases) on the basis of given materials in some way
which the legal system points out; (2) interpreting the rule so chosen
or ascertained, that is, determining its meaning as it was framed and
with respect to its intended scope; (3) applying to the cause in hand
the rule so found and interpreted. In the past these have been
confused under the name of interpretation. It was assumed that the
function of the judge consisted simply in interpreting an
authoritatively given rule of wholly extra-judicial origin by an exact
process of deducing its logically implied content and in mechanically
applying the rule so given and interpreted. This assumption has its
origin in the stage of the strict law in the attempt to escape from
the overdetail on the one hand, and the vague sententiousness on the
other hand, which are characteristic of primitive law. For the most
part primitive law is made up of simple, precise, detailed rules for
definite narrowly defined situations. It has no general principles.
The first step toward a science of law is the making of distinctions
between what comes within and what does not come within the legal
meaning of a rule. But a body of primitive law also often contains a
certain number of sententious legal proverbs, put in striking form so
as to stick in the memory, but vague in their content. The strict law
by means of a conception of results obtained inevitably from fixed
rules and undeviating remedial proceedings seeks relief from the
uncertainty inherent in the finding of a larger content for
overdetailed special rules through differentiation of cases and the
application of legal proverbial sayings through the "equity of the
tribunal." It conceives of application of law as involving nothing but
a mechanical fitting of the case with the strait-jacket of rule or
remedy. The inevitable adjustments and extendings and limitations,
which an attempt to administer justice in this way must involve, are
covered up by a fiction of interpretation in order to maintain the
general security.
Philosophical rationalizing of the attempt to avoid the overpersonal
administration of justice incident to the partial reversion to justice
without law in the stage of equity and natural law, reinforced the
assumption that judicial application of law was a mechanical process
and was but a phase of interpretation. In the eighteenth century it
was given scientific form in the theory of separation of powers. The
legislative organ made laws. The executive administered them. The
judiciary applied them to the decision of controversies. It was
admitted in Anglo-American legal thinking that courts must interpret
in order to apply. But the interpretation was taken not to be in any
wise a lawmaking and the application was taken not to involve any
administrative element and to be wholly mechanical. On the Continent
interpretation so as to make a binding rule for future cases was
deemed to belong only to the legislator. The maturity of law was not
willing to admit that judge or jurist could make anything. It was not
the least service of the analytical jurisprudence of the last century
to show that the greater part of what goes by the name of
interpretation in this way of thinking is really a lawmaking process,
a supplying of new law where no rule or no sufficient rule is at hand.
"The fact is," says Gray most truly, "that the difficulties of
so-called interpretation arise when the legislature has had no meaning
at all; when the question which is raised on the statute never
occurred to it; when what the judges have to do is, not to determine
what the legislature did mean on a point which was present to its
mind, but to guess what it would have intended on a point not present
to its mind had the point been present." The attempt to maintain the
separation of powers by constitutional prohibitions has pointed to
the same lesson from another side. Lawmaking, administration and
adjudication cannot be rigidly fenced off one from the other and
turned over each to a separate agency as its exclusive field. There is
rather a division of labor as to typical cases and a practical or
historical apportionment of the rest.
Finding the law may consist merely in laying hold of a prescribed text
of a code or statute. In that event the tribunal must proceed to
determine the meaning of the rule and to apply it. But many cases are
not so simple. More than one text is at hand which might apply; more
than one rule is potentially applicable, and the parties are
contending which shall be made the basis of a decision. In that event
the several rules must be interpreted in order that intelligent
selection may be made. Often the genuine interpretation of the
existing rules shows that none is adequate to cover the case and that
what is in effect, if not in theory, a new one must be supplied.
Attempts to foreclose this process by minute, detailed legislation
have failed signally, as, for example, in the overgrown code of civil
procedure in New York. Providing of a rule by which to decide the
cause is a necessary element in the determination of a large
proportion of the causes that come before our higher tribunals, and it
is often because a rule must be provided that the parties are not
content to abide the decision of the court of first instance.
Cases calling for genuine interpretation are relatively few and
simple. Moreover genuine interpretation and lawmaking under the guise
of interpretation run into one another. In other words, the judicial
function and the legislative function run into one another. It is the
function of the legislative organ to make laws. But from the nature of
the case it cannot make laws so complete and all-embracing that the
judicial organ will not be obliged to exercise a certain lawmaking
function also. The latter will rightly consider this a subordinate
function. It will take it to be one of supplementing, developing and
shaping given materials by means of a given technique. None the less
it is a necessary part of judicial power. Pushed to the extreme that
regards all judicial lawmaking as unconstitutional usurpation, our
political theory, a philosophical classification made over by
imperfect generalization from the British constitution as it was in
the seventeenth century, has served merely to intrench in the
professional mind the dogma of the historical school, that legislative
lawmaking is a subordinate function and exists only to supplement the
traditional element of the legal system here and there and to set the
judicial or juristic tradition now and then in the right path as to
some particular item where it had gone astray.
In Anglo-American law we do not think of analogical development of the
traditional materials of the legal system as interpretation. In
Roman-law countries, where the law is made up of codes supplemented
and explained by the codified Roman law of Justinian and modern usage
on the basis thereof, which stands as the common law, it seems clear
enough that analogical application whether of a section of the code or
of a text of the Roman law is essentially the same process. Both are
called interpretation. As our common law is not in the form of
authoritative texts, the nature of the process that goes on when a
leading case is applied by analogy, or limited in its application, or
distinguished, is concealed. It does not seem on the surface to be the
same process as when a text of the Digest is so applied or limited or
distinguished. Hence it has been easy for us to assume that courts did
no more than genuinely interpret legislative texts and deduce the
logical content of authoritatively established traditional principles.
It has been easy to accept a political theory, proceeding on the dogma
of separation of powers, and to lay down that courts only interpret
and apply, that all making of law must come from the legislature, that
courts must "take the law as they find it," as if they could always
find it ready-made for every case. It has been easy also to accept a
juristic theory that law cannot be made; that it may only be found,
and that the process of finding it is a matter purely of observation
and logic, involving no creative element. If we really believed this
pious fiction, it would argue little faith in the logical powers of
the bench in view of the diversity of judicially asserted doctrines on
the same point which so frequently exist in our case law and the
widely different opinions of our best judges with respect to them. As
interpretation is difficult, when it is difficult, just because the
legislature had no actual intent to ascertain, so the finding of the
common law on a new point is difficult because there is no rule of law
to find. The judicial and the legislative functions run together also
in judicial ascertainment of the common law by analogical application
of decided cases.
As interpretation on the one side runs into lawmaking and so the
judicial function runs into the legislative function, on the other
side interpretation runs into application and so the judicial function
runs into the administrative or executive. Typically judicial
treatment of a controversy is a measuring of it by a rule in order to
reach a universal solution for a class of causes of which the cause in
hand is but an example. Typically administrative treatment of a
situation is a disposition of it as a unique occurrence, an
individualization whereby effect is given to its special rather than
to its general features. But administration cannot ignore the
universal aspects of situations without endangering the general
security. Nor may judicial decision ignore their special aspects and
exclude all individualization in application without sacrificing the
social interest in the individual life through making justice too
wooden and mechanical. The idea that there is no administrative
element in the judicial decision of causes and that judicial
application of law should be a purely mechanical process goes back to
Aristotle's Politics. Writing before a strict law had developed, in
what may be called the highest point of development of primitive law,
when the personal character and feelings for the time being of kings
or magistrates or dicasts played so large a part in the actual
workings of legal justice, Aristotle sought relief through a
distinction between the administrative and the judicial. He conceived
that discretion was an administrative attribute. In administration
regard was to be had to times and men and special circumstances. The
executive was to use a wise discretion in adjusting the machinery of
government to actual situations as they arose. On the other hand, he
conceived that a court should have no discretion. To him the judicial
office was a Procrustean one of fitting each case to the legal bed, if
necessary by a surgical operation. Such a conception met the needs of
the strict law. In a stage of legal maturity it was suited to the
Byzantine theory of law as the will of the emperor and of the judge as
the emperor's delegate to apply and give effect to that will. In the
Middle Ages it had a sufficient basis in authority and in the needs of
a period of strict law. Later it fitted well into the Byzantine theory
of lawmaking which French publicists adopted and made current in the
seventeenth and eighteenth centuries. In the United States it seemed
to be required by our constitutional provisions for a separation of
powers. But in practice it has broken down no less completely than the
analogous idea of entire separation of the judicial from the
lawmaking function.
Almost all of the problems of jurisprudence come down to a fundamental
one of rule and discretion, of administration of justice by law and
administration of justice by the more or less trained intuition of
experienced magistrates. Controversies as to the nature of law,
whether the traditional element or the imperative element of legal
systems is the typical law, controversies as to the nature of
lawmaking, whether the law is found by judicial empiricism or made by
conscious legislation, and controversies as to the bases of law's
authority, whether in reason and science on the one hand or in command
and sovereign will on the other hand, get their significance from
their bearing upon this question. Controversies as to the relation of
law and morals, as to the distinction of law and equity, as to the
province of the court and of the jury, as to fixed rule or wide
judicial power in procedure, and as to judicial sentence and
administrative individualization in punitive justice are but forms of
this fundamental problem. This is not the place to discuss that
problem. Suffice it to say that both are necessary elements in the
administration of justice and that instead of eliminating either, we
must partition the field between them. But it has been assumed that
one or the other must govern exclusively, and there has been a
continual movement in legal history back and forth between wide
discretion and strict detailed rule, between justice without law, as
it were, and justice according to law. The power of the magistrate has
been a liberalizing agency in periods of growth. In the stage of
equity and natural law, a stage of infusion of moral ideas from
without into the law, the power of the magistrate to give legal force
to his purely moral ideas was a chief instrument. Today we rely
largely upon administrative boards and commissions to give legal force
to ideas which the law ignores. On the other hand rule and form with
no margin of application have been the main reliance of periods of
stability. The strict law sought to leave nothing to the judge beyond
seeing whether the letter had been complied with. The nineteenth
century abhorred judicial discretion and sought to exclude the
administrative element from the domain of judicial justice. Yet a
certain field of justice without law always remained and by one device
or another the balance of the supposedly excluded administrative
element was preserved.
In the strict law individualization was to be excluded by hard and
fast mechanical procedure. In practice this procedure was corrected
and the balance between rule and discretion, between the legal and the
administrative, was restored by fictions and by an executive
dispensing power. Roman equity has its origin in the _imperium_ of the
_praetor_--his royal power to dispense with the strict law in
particular situations. Also English equity has its origin in the royal
power of discretionary application of law and dispensing with law in
particular cases, misuse of which as a political institution was one
of the causes of the downfall of the Stuarts. Thus we get a third
agency for restoring the balance in the form of systematic
interposition of praetor or chancellor on equitable grounds, leading
to a system of equity. Carried too far in the stage of equity and
natural law, overdevelopment of the administrative element brings
about a reaction and in the maturity of law individualization is
pushed to the wall once more. Yet this elimination of the
administrative takes place more in theory and in appearance than in
reality. For justice comes to be administered in large measure through
the application of legal standards which admit of a wide margin for
the facts of particular cases, and the application of these standards
is committed to laymen or to the discretion of the tribunal. Moreover
a certain judicial individualization goes on. Partly this takes the
form of a margin of discretionary application of equitable remedies,
handed down from the stage of equity and natural law. Partly it takes
the form of ascertainment of the facts with reference to the legal
result desired in view of the legal rule or of choice between
competing rules in effect covering the same ground, although nominally
for distinct situations. In other words, a more subtle fiction does
for the maturity of law what is done for the strict law by its
relatively crude procedural fictions.
Of these five agencies for preserving the administrative element in
judicial justice, in periods when legal theory excludes it, two call
for special consideration.
It is usual to describe law as an aggregate of rules. But unless the
word rule is used in so wide a sense as to be misleading, such a
definition, framed with reference to codes or by jurists whose eyes
were fixed upon the law of property, gives an inadequate picture of
the manifold components of a modern legal system. Rules, that is,
definite, detailed provisions for definite, detailed states of fact,
are the main reliance of the beginnings of law. In the maturity of law
they are employed chiefly in situations where there is exceptional
need of certainty in order to uphold the economic order. With the
advent of legal writing and juristic theory in the transition from the
strict law to equity and natural law, a second element develops and
becomes a controlling factor in the administration of justice. In
place of detailed rules precisely determining what shall take place
upon a precisely detailed state of facts, reliance is had upon general
premises for judicial and juristic reasoning. These legal principles,
as we call them, are made use of to supply new rules, to interpret old
ones, to meet new situations, to measure the scope and application of
rules and standards and to reconcile them when they conflict or
overlap. Later, when juristic study seeks to put the materials of the
law in order, a third element develops, which may be called legal
conceptions. These are more or less exactly defined types, to which we
refer cases or by which we classify them, so that when a state of
facts is classified we may attribute thereto the legal consequences
attaching to the type. All of these admit of mechanical or rigidly
logical application. A fourth element, however, which plays a great
part in the everyday administration of justice, is of quite another
character.
Legal standards of conduct appear first in Roman equity. In certain
cases of transactions or relations involving good faith, the formula
was made to read that the defendant was to be condemned to that which
in good faith he ought to give or do for or render to the plaintiff.
Thus the judge had a margin of discretion to determine what good faith
called for and in Cicero's time the greatest lawyer of the day thought
these _actiones bonae fidei_ required a strong judge because of the
dangerous power which they allowed him. From this procedural device,
Roman lawyers worked out certain standards or measures of conduct,
such as what an upright and diligent head of a family would do, or the
way in which a prudent and diligent husbandman would use his land. In
similar fashion English equity worked out a standard of fair conduct
on the part of a fiduciary. Later the Anglo-American law of torts
worked out, as a measure for those who are pursuing some affirmative
course of conduct, the standard of what a reasonable, prudent man
would do under the circumstances. Also the law of public utilities
worked out standards of reasonable service, reasonable facilities,
reasonable incidents of the service and the like. In all these cases
the rule is that the conduct of one who acts must come up to the
requirements of the standard. Yet the significant thing is not the
fixed rule but the margin of discretion involved in the standard and
its regard for the circumstances of the individual case. For three
characteristics may be seen in legal standards: (1) They all involve a
certain moral judgment upon conduct. It is to be "fair," or
"conscientious," or "reasonable," or "prudent," or "diligent." (2)
They do not call for exact legal knowledge exactly applied, but for
common sense about common things or trained intuition about things
outside of everyone's experience. (3) They are not formulated
absolutely and given an exact content, either by legislation or by
judicial decision, but are relative to times and places and
circumstances and are to be applied with reference to the facts of the
case in hand. They recognize that within the bounds fixed each case is
to a certain extent unique. In the reaction from equity and natural
law, and particularly in the nineteenth century, these standards were
distrusted. Lord Camden's saying that the discretion of a judge was
"the law of tyrants," that it was different in different men, was
"casual" and dependent upon temperament, has in it the whole spirit of
the maturity of law. American state courts sought to turn the
principles by which the chancellors were wont to exercise their
discretion into hard and fast rules of jurisdiction. They sought to
reduce the standard of reasonable care to a set of hard and fast
rules. If one crossed a railroad, he must "stop, look and listen." It
was negligence _per se_ to get on or off a moving car, to have part of
the body protruding from a railroad car, and the like. Also they
sought to put the duties of public utilities in the form of definite
rules with a detailed, authoritatively fixed content. All these
attempts to do away with the margin of application involved in legal
standards broke down. The chief result was a reaction in the course of
which many states turned over all questions of negligence to juries,
free even from effective advice from the bench, while many other
jurisdictions have been turning over subject after subject to
administrative boards and commissions to be dealt with for a season
without law. In any event, whether the standard of due care in an
action for negligence is applying by a jury, or the standard of
reasonable facilities for transportation is applying by a public
service commission, the process is one of judging of the quality of a
bit of conduct under its special circumstances and with reference to
ideas of fairness entertained by the layman or the ideas of what is
reasonable entertained by the more or less expert commissioner. Common
sense, experience and intuition are relied upon, not technical rule
and scrupulously mechanical application.
We are familiar with judicial individualization in the administration
of equitable remedies. Another form, namely, individualization through
latitude of application under the guise of choice or ascertainment of
a rule, is concealed by the fiction of the logical completeness of the
legal system and the mechanical, logical infallibility of the logical
process whereby the predetermined rules implicit in the given legal
materials are deduced and applied. To a large and apparently growing
extent the practice of our application of law has been that jurors or
courts, as the case may be, take the rules of law as a general guide,
determine what the equities of the cause demand, and contrive to find
a verdict or render a judgment accordingly, wrenching the law no more
than is necessary. Many courts today are suspected of ascertaining
what the equities of a controversy require, and then raking up
adjudicated cases to justify the result desired. Often formulas are
conveniently elastic so that they may or may not apply. Often rules of
contrary tenor overlap, leaving a convenient no-man's-land wherein
cases may be decided either way according to which rule the court
chooses in order to reach a result arrived at on other grounds.
Occasionally a judge is found who acknowledges frankly that he looks
chiefly at the ethical situation between the parties and does not
allow the law to interfere therewith beyond what is inevitable.
Thus we have in fact a crude equitable application, a crude
individualization, throughout the field of judicial administration of
justice. It is assumed by courts more widely than we suspect, or at
least, more widely than we like to acknowledge. Ostensibly there is no
such power. But when one looks beneath the surface of the law reports,
the process reveals itself under the name of "implication" or in the
guise of two lines of decisions of the same tribunal upon the same
point from which it may choose at will, or in the form of what have
been termed "soft spots" in the law--spots where the lines are so
drawn by the adjudicated cases that the court may go either way as the
ethical exigencies of the special circumstances of the case in hand
may require, with no apparent transgression of what purport to be hard
and fast rules. Such has been the result of attempts to exclude the
administrative element in adjudication. In theory there is no such
thing except with respect to equitable remedies, where it exists for
historical reasons. In practice there is a great deal of it, and that
in a form which is unhappily destructive of certainty and uniformity.
Necessary as it is, the method by which we attain a needed
individualization is injurious to respect for law. If the courts do
not respect the law, who will? There is no exclusive cause of the
current American attitude toward the law. But judicial evasion and
warping of the law, in order to secure in practice a freedom of
judicial action not conceded in theory, is certainly one cause. We
need a theory which recognizes the administrative element as a
legitimate part of the judicial function and insists that
individualization in the application of legal precepts is no less
important than the contents of those precepts themselves.