today. The theory which has the largest following among practitioners
and in dogmatic exposition of the law is analytical. It assumes a
complete body of law with no gaps and no antinomies, given authority
by the state at one stroke and so to be treated as if every item was
of the same date as every other. If the law is in the form of a code,
its adherents apply the canons of genuine interpretation and ask what
the several code provisions mean as they stand, looked at logically
rather than historically. They endeavor to find the pre-appointed code
pigeonhole for each concrete case, to put the case in hand into it by
a purely logical process and to formulate the result in a judgment. If
the law is in the form of a body of reported decisions, they assume
that those decisions may be treated as if all rendered at the same
time and as containing implicitly whatever is necessary to the
decision of future causes which they do not express. They may define
conceptions or they may declare principles. The logically
predetermined decision is contained in the conception to which the
facts are referred or involved in the principle within whose scope the
facts fall. A purely logical process, exactly analogous to genuine
interpretation of a legislative rule, will yield the appropriate
conception from given premises or discover the appropriate principle
from among those which superficially appear to apply. Application is
merely formulation in a judgment of the result obtained by analysis of
the case and logical development of the premises contained in the
reported decisions.
Among teachers a historical theory has the larger following. If the
law is in the form of a code, the code provisions are assumed to be in
the main declaratory of the law as it previously existed; the code is
regarded as a continuation and development of pre-existing law. All
exposition of the code and of any provision thereof must begin by an
elaborate inquiry into the pre-existing law and the history and
development of the competing juristic theories among which the framers
of the code had to choose. If the law is in the form of a body of
reported decisions, the later decisions are regarded as but declaring
and illustrating the principles to be found by historical study of the
older ones; as developing legal conceptions and principles to be found
by historical study of the older law. Hence all exposition must begin
with an elaborate historical inquiry in which the idea that has been
unfolding in the course of judicial decision is revealed and the lines
are disclosed along which legal development must move. But when the
content of the applicable legal precept is discovered in these ways,
the method of applying it in no way differs from that which obtains
under the analytical theory. The process of application is assumed to
be a purely logical one. Do the facts come within or fail to come
within the legal precept? This is the sole question for the judge.
When by historical investigation he has found out what the rule is, he
has only to fit it to just and unjust alike.
Analytical and historical theories of application of law thus seek to
exclude the administrative element wholly and their adherents resort
to fictions to cover up the judicial individualization which none the
less obtains in practice or else ignore it, saying that it is but a
result of the imperfect constitution of tribunals or of the ignorance
or sloth of those who sit therein. The latter explanation is no more
satisfying than the fictions, and a new theory has sprung up of late
in Continental Europe which may be understood best by calling it the
equitable theory, since the methods of the English Chancellor had much
to do with suggesting it. To the adherents of this theory the
essential thing is a reasonable and just solution of the individual
controversy. They conceive of the legal precept, whether legislative
or traditional, as a guide to the judge, leading him toward the just
result. But they insist that within wide limits he should be free to
deal with the individual case so as to meet the demands of justice
between the parties and accord with the reason and moral sense of
ordinary men. They insist that application of law is not a purely
mechanical process. They contend that it involves not logic only but
moral judgments as to particular situations and courses of conduct in
view of the special circumstances which are never exactly alike. They
insist that such judgments involve intuitions based upon experience
and are not to be expressed in definitely formulated rules. They
argue that the cause is not to be fitted to the rule but the rule to
the cause.
Much that has been written by advocates of the equitable theory of
application of law is extravagant. As usually happens, in reaction
from theories going too far in one direction this theory has gone too
far in the other. The last century would have eliminated
individualization of application. Now, as in the sixteenth- and
seventeenth-century reaction from the strict law, come those who would
have nothing else; who would turn over the whole field of judicial
justice to administrative methods. If we must choose, if judicial
administration of justice must of necessity be wholly mechanical or
else wholly administrative, it was a sound instinct of lawyers in the
maturity of law that led them to prefer the former. Only a saint, such
as Louis IX under the oak at Vincennes, may be trusted with the wide
powers of a judge restrained only by a desire for just results in each
case to be reached by taking the law for a general guide. And St.
Louis did not have the crowded calendars that confront the modern
judge. But are we required to choose? May we not learn something from
the futility of all efforts to administer justice exclusively by
either method? May we not find the proper field of each by examining
the means through which in fact we achieve an individualization which
we deny in theory, and considering the cases in which those means
operate most persistently and the actual administration of justice
most obstinately refuses to become as mechanical in practice as we
expect it to be in theory?
In Anglo-American law today there are no less than seven agencies
for individualizing the application of law. We achieve an
individualization in practice: (1) through the discretion of courts in
the application of equitable remedies; (2) through legal standards
applied to conduct generally when injury results and also to certain
relations and callings; (3) through the power of juries to render
general verdicts; (4) through latitude of judicial application
involved in finding the law; (5) through devices for adjusting penal
treatment to the individual offender; (6) through informal methods of
judicial administration in petty courts, and (7) through
administrative tribunals. The second and fourth have been considered.
Let us look for a moment at the others.
Discretion in the exercise of equitable remedies is an outgrowth of
the purely personal intervention in extraordinary cases on grounds
that appealed to the conscience of the chancellor in which equity
jurisdiction has its origin. Something of the original flavor of
equitable interposition remains in the doctrine of personal bar to
relief, and in the ethical quality of some of the maxims which
announce policies to be pursued in the exercise of the chancellor's
powers. But it was possible for the nineteenth century to reconcile
what remained of the chancellor's discretion with its mode of
thinking. Where the plaintiff's right was legal but the legal remedy
was not adequate to secure him in what the legal right entitled him to
claim, equity gave a concurrent remedy supplementing the strict law.
As the remedy in equity was supplementary and concurrent, in case the
chancellor in his discretion kept his hands off, as he would if he
felt that he could not bring about an equitable result, the law would
still operate. The plaintiff's right was in no wise at the mercy of
anyone's discretion. He merely lost an extraordinary and supplementary
remedy and was left to the ordinary course of the law. Such was the
orthodox view of the relation of law and equity. Equity did not alter
a jot or tittle of the law. It was a remedial system alongside of the
law, taking the law for granted and giving legal rights greater
efficacy in certain situations. But take the case of a "hard bargain,"
where the chancellor in his discretion may deny specific performance.
In England and in several states the damages at law do not include the
value of the bargain where the contract is for the sale of land. Hence
unless specific performance is granted, the plaintiff's legal right is
defeated. It is notorious that bargains appeal differently to
different chancellors in this respect. In the hands of some the
doctrine as to hard bargains has a tendency to become wooden, as it
were. There is a hard and fast rule that certain bargains are "hard"
and that equity will not enforce them. In states where the value of
the bargain may be recovered at law, it may well be sometimes that the
bargain might as well be enforced in equity, if it is not to be
cancelled. But the chancellor is not unlikely to wash his hands of a
hard case, saying that the court of law is more callous; let that
court act, although that court is the same judge with another docket
before him. In other hands, the doctrine tends to become ultro-ethical
and to impair the security of transactions. In other words, the margin
of discretion in application of equitable remedies tends on the one
hand to disappear through crystallization of the principles governing
its exercise into rigid rules, or on the other hand, to become
overpersonal and uncertain and capricious. Yet as one reads the
reports attentively he cannot doubt that in action it is an important
engine of justice; that it is a needed safety valve in the working of
our legal system.
At common law the chief reliance for individualizing the application
of law is the power of juries to render general verdicts, the power to
find the facts in such a way as to compel a different result from that
which the legal rule strictly applied would require. In appearance
there has been no individualization. The judgment follows necessarily
and mechanically from the facts upon the record. But the facts found
were found in order to reach the result and are by no means
necessarily the facts of the actual case. Probably this power alone
made the common law of master and servant tolerable in the last
generation. Yet exercise of this power, with respect to which, as Lord
Coke expressed it, "the jurors are chancellors," has made the jury an
unsatisfactory tribunal in many classes of cases. It is largely
responsible for the practice of repeated new trials which makes the
jury a most expensive tribunal. The crude individualization achieved
by juries, influenced by emotional appeals, prejudice and the
peculiar personal ideas of individual jurors, involves quite as much
injustice at one extreme as mechanical application of law by judges at
the other extreme. Indeed the unchecked discretion of juries, which
legislation has brought about in some jurisdictions, is worse than the
hobbled court and rigid mechanical application of law from which it is
a reaction.
Our administration of punitive justice is full of devices for
individualizing the application of criminal law. Our complicated
machinery of prosecution involves a great series of mitigating
agencies whereby individual offenders may be spared or dealt with
leniently. Beginning at the bottom there is the discretion of the
police as to who and what shall be brought to the judicial mill. Next
are the wide powers of our prosecuting officers who may ignore
offences or offenders, may dismiss proceedings in their earlier
stages, may present them to grand juries in such a way that no
indictment results, or may enter a _nolle prosequi_ after indictment.
Even if the public prosecutor desires to prosecute, the grand jury
may ignore the charge. If the cause comes to trial, the petit jury may
exercise a dispensing power by means of a general verdict. Next comes
judicial discretion as to sentence, or in some jurisdictions,
assessment of punishment by the discretion of the trial jury. Upon
these are superposed administrative parole or probation and executive
power to pardon. The lawyer-politician who practices in the criminal
courts knows well how to work upon this complicated machinery so as to
enable the professional criminal to escape as well as those or even
instead of those for whom these devices were intended. They have been
developed to obviate the unhappy results of a theory which would have
made the punishment mechanically fit the crime instead of adjusting
the penal treatment to the criminal. Here, as elsewhere, the attempt
to exclude the administrative element has brought about back-handed
means of individualization which go beyond the needs of the situation
and defeat the purposes of the law.
Even more striking is the recrudescence of personal government, by
way of reaction from an extreme of government of laws and not of men,
which is involved in the setting up of administrative tribunals on
every hand and for every purpose. The regulation of public utilities,
apportionment of the use of the water of running streams among
different appropriators, workmen's compensation, the actual duration
and nature of punishment for crime, admission to and practice of
professions and even of trades, the power to enter or to remain in the
country, banking, insurance, unfair competition and restraint of
trade, the enforcement of factory laws, of pure food laws, of housing
laws and of laws as to protection from fire and the relation of
principal and agent, as between farmers and commission merchants, are
but some of the subjects which the living law, the law in action, is
leaving to executive justice in administrative tribunals. To some
extent this is required by the increasing complexity of the social
order and the minute division of labor which it involves. Yet this
complexity and this division of labor developed for generations in
which the common-law jealousy of administration was dominant. Chiefly
our revival of executive justice in the present century is one of
those reversions to justice without law which are perennial in legal
history. As in the case of like reversions in the past it is the
forerunner of growth. It is the first form of reaction from the
overrigid application of law in a period of stability. A bad
adjustment between law and administration and cumbrous, ineffective
and unbusinesslike legal procedure, involving waste of time and money
in the mere etiquette of justice, are doing in our time what like
conditions did in English law in the middle of the sixteenth century.
If we look back at the means of individualizing the application of law
which have developed in our legal system, it will be seen that almost
without exception they have to do with cases involving the moral
quality of individual conduct or of the conduct of enterprises, as
distinguished from matters of property and of commercial law. Equity
uses its powers of individualizing to the best advantage in
connection with the conduct of those in whom trust and confidence have
been reposed. Legal standards are used chiefly in the law of torts, in
the law of public utilities and in the law as to fiduciary relations.
Jury lawlessness is an agency of justice chiefly in connection with
the moral quality of conduct where the special circumstances exclude
that "intelligence without passion" which, according to Aristotle,
characterizes the law. It is significant that in England today the
civil jury is substantially confined to cases of defamation, malicious
prosecution, assault and battery and breach of promise of marriage.
Judicial individualization through choice of a rule is most noticeable
in the law of torts, in the law of domestic relations and in passing
upon the conduct of enterprises. The elaborate system of
individualization in criminal procedure has to do wholly with
individual human conduct. The informal methods of petty courts are
meant for tribunals which pass upon conduct in the crowd and hurry of
our large cities. The administrative tribunals, which are setting up
on every hand, are most called for and prove most effective as means
of regulating the conduct of enterprises.
A like conclusion is suggested when we look into the related
controversy as to the respective provinces of common law and of
legislation. Inheritance and succession, definition of interests in
property and the conveyance thereof, matters of commercial law and the
creation, incidents and transfer of obligations have proved a fruitful
field for legislation. In these cases the social interest in the
general security is the controlling element. But where the questions
are not of interests of substance but of the weighing of human conduct
and passing upon its moral aspects, legislation has accomplished
little. No codification of the law of torts has done more than provide
a few significantly broad generalizations. On the other hand,
succession to property is everywhere a matter of statute law and
commercial law is codified or codifying throughout the world. Moreover
the common law insists upon its doctrine of _stare decisis_ chiefly
in the two cases of property and commercial law. Where legislation is
effective, there also mechanical application is effective and
desirable. Where legislation is ineffective, the same difficulties
that prevent its satisfactory operation require us to leave a wide
margin of discretion in application, as in the standard of the
reasonable man in our law of negligence and the standard of the
upright and diligent head of a family applied by the Roman law, and
especially by the modern Roman law, to so many questions of fault,
where the question is really one of good faith. All attempts to cut
down this margin have proved futile. May we not conclude that in the
part of the law which has to do immediately with conduct complete
justice is not to be attained by the mechanical application of fixed
rules? Is it not clear that in this part of the administration of
justice the trained intuition and disciplined judgment of the judge
must be our assurance that causes will be decided on principles of
reason and not according to the chance dictates of caprice, and that
a due balance will be maintained between the general security and the
individual human life?
Philosophically the apportionment of the field between rule and
discretion which is suggested by the use of rules and of standards
respectively in modern law has its basis in the respective fields of
intelligence and intuition. Bergson tells us that the former is more
adapted to the inorganic, the latter more to life. Likewise rules,
where we proceed mechanically, are more adapted to property and to
business transactions, and standards; where we proceed upon
intuitions, are more adapted to human conduct and to the conduct of
enterprises. According to him, intelligence is characterized by "its
power of grasping the general element in a situation and relating it
to past situations," and this power involves loss of "that perfect
mastery of a special situation in which instinct rules." In the law of
property and in the law of commercial transactions it is precisely
this general element and its relation to past situations that is
decisive. The rule, mechanically applied, works by repetition and
precludes individuality in results, which would threaten the security
of acquisitions and the security of transactions. On the other hand,
in the handmade, as distinguished from the machine-made product, the
specialized skill of the workman gives us something infinitely more
subtle than can be expressed in rules. In law some situations call for
the product of hands, not of machines, for they involve not
repetition, where the general elements are significant, but unique
events, in which the special circumstances are significant. Every
promissory note is like every other. Every fee simple is like every
other. Every distribution of assets repeats the conditions that have
recurred since the Statute of Distributions. But no two cases of
negligence have been alike or ever will be alike. Where the call is
for individuality in the product of the legal mill, we resort to
standards. And the sacrifice of certainty in so doing is more apparent
than actual. For the certainty attained by mechanical application of
fixed rules to human conduct has always been illusory.
IV
Liability
A systematist who would fit the living body of the law to his logical
analytical scheme must proceed after the manner of Procrustes. Indeed,
this is true of all science. In life phenomena are unique. The
biologist of today sometimes doubts whether there are species and
disclaims higher groups as more than conveniences of study. "Dividing
lines," said a great American naturalist, "do not occur in nature
except as accidents." Organization and system are logical
constructions of the expounder rather than in the external world
expounded. They are the means whereby we make our experience of that
world intelligible and available. It is with no illusion, therefore,
that I am leading you to a juristic _ultima Thule_ that I essay a bit
of systematic legal science on a philosophical basis. Even if it
never attains a final system in which the law shall stand fast
forever, the continual juristic search for the more inclusive order,
the continual juristic struggle for a simpler system that will better
order and better reconcile the phenomena of the actual administration
of justice, is no vain quest. Attempts to understand and to expound
legal phenomena lead to generalizations which profoundly affect those
phenomena, and criticism of those generalizations, in the light of the
phenomena they seek to explain and to which they give rise, enables us
to replace them or modify them or supplement them and thus to keep the
law a growing instrument for achieving expanding human desires.
One of the stock questions of the science of law is the nature and
system and philosophical basis of situations in which one may exact
from another that he "give or do or furnish something" (to use the
Roman formula) for the advantage of the former. The classical Roman
lawyer, thinking in terms of natural law, spoke of a bond or relation
of right and law between them whereby the one might justly and
legally exact and the other was bound in justice and law to perform.
In modern times, thinking, whether he knows it or not, in terms of
natural rights and by derivation of legal rights, the analytical
jurist speaks of rights _in personam_. The Anglo-American lawyer,
thinking in terms of procedure, speaks of contracts and torts, using
the former term in a wide sense. If pressed, he may refer certain
enforceable claims to exact and duties of answering to the exaction to
a Romanist category of quasi-contract, satisfied to say "quasi"
because on analysis they do not comport with his theory of contract,
and to say "contract" because procedurally they are enforced _ex
contractu_. Pressed further, he may be willing to add "quasi tort" for
cases of common-law liability without fault and workmen's
compensation--"quasi" because there is no fault, "tort" because
procedurally the liability is given effect _ex delicto_. But cases of
duties enforceable either _ex contractu_ or _ex delicto_ at the option
of the pleader and cases where the most astute pleader is hard pushed
to choose have driven us to seek something better.