An Introduction to the Philosophy of Law - Roscoe Pound (each kindness read aloud .txt) 📗
- Author: Roscoe Pound
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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.
Three theories of application of law obtain in the legal science of 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
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