An Introduction to the Philosophy of Law - Roscoe Pound (each kindness read aloud .txt) 📗

Social utilitarians would say, weigh the several interests in terms of the end of law. But have we any given to us absolutely? Is the end of law anything less than to do whatever may be achieved thereby to satisfy human desires? Are the limits any other than those imposed by the tools with which we work, whereby we may lose more than we gain, if we attempt to apply them in certain situations? If so, there is always a possibility of improved tools. The Greek philosopher who said that the only possible subjects of lawsuit were "insult, injury and homicide," was as dogmatic as Herbert Spencer, who conceived of sanitary laws and housing laws in our large cities as quite outside the domain of the legal order. Better legal machinery extends the field of legal effectiveness as better machinery has extended the field of industrial effectiveness. I do not mean that the law should interfere as of course in every human relation and in every situation where some one chances to think a social want may be satisfied thereby. Experience has shown abundantly how futile legal machinery may be in its attempts to secure certain kinds of interests. What I do say is, that if in any field of human conduct or in any human relation the law, with such machinery as it has, may satisfy a social want without a disproportionate sacrifice of other claims, there is no eternal limitation inherent in the nature of things, there are no bounds imposed at creation, to stand in the way of its doing so.

Let us apply some of the other theories which are now current. The Neo-Hegelians say: Try the claims in terms of civilization, in terms of the development of human powers to the most of which they are capable—the most complete human mastery of nature, both human nature and external nature. The Neo-Kantians say: Try them in terms of a community of free-willing men as the social ideal. Duguit says: Try them in terms of social interdependence and social function. Do they promote or do they impede social interdependence through similarity of interest and division of labor? In these formulas do we really get away from the problem of a balance compatible with maintaining all the interests, with responding to all the wants and claims, which are involved in civilized social existence?

For the purpose of understanding the law of today I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants—the claims and demands involved in the existence of civilized society—by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence—in short, a continually more efficacious social engineering.

Three steps are involved in the adjudication of a controversy 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