An Introduction to the Philosophy of Law Part 2

The Application of Law

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 a.s.sumed 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 a.s.sumption 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 a.s.sumption 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 a.n.a.lytical 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 const.i.tutional 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 unconst.i.tutional usurpation, our political theory, a philosophical cla.s.sification made over by imperfect generalization from the British const.i.tution 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 a.n.a.logical 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 a.n.a.logical 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 a.n.a.logy, 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 a.s.sume 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 a.s.serted 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 a.n.a.logical 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 cla.s.s 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 circ.u.mstances. 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 const.i.tutional provisions for a separation of powers. But in practice it has broken down no less completely than the a.n.a.logous 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 part.i.tion the field between them. But it has been a.s.sumed 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 inst.i.tution 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 cla.s.sify them, so that when a state of facts is cla.s.sified 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 circ.u.mstances. 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 circ.u.mstances 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 circ.u.mstances 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 circ.u.mstances 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 lat.i.tude 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 a.s.sumed 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 circ.u.mstances 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 att.i.tude 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 pract.i.tioners and in dogmatic exposition of the law is a.n.a.lytical. It a.s.sumes 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 a.s.sume 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 a.n.a.logous 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 a.n.a.lysis 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 a.s.sumed 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 ill.u.s.trating 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 a.n.a.lytical theory. The process of application is a.s.sumed 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.

a.n.a.lytical 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 const.i.tution 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 circ.u.mstances 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 lat.i.tude 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 ent.i.tled 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 t.i.ttle 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 c.o.ke expressed it, "the jurors are chancellors," has made the jury an unsatisfactory tribunal in many cla.s.ses 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 pet.i.t jury may exercise a dispensing power by means of a general verdict. Next comes judicial discretion as to sentence, or in some jurisdictions, a.s.sessment 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 compet.i.tion 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 princ.i.p.al 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 c.u.mbrous, 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 circ.u.mstances exclude that "intelligence without pa.s.sion" 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, a.s.sault 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 pa.s.sing 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 pa.s.s 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 pa.s.sing 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 a.s.surance 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 repet.i.tion 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 repet.i.tion, where the general elements are significant, but unique events, in which the special circ.u.mstances are significant. Every promissory note is like every other. Every fee simple is like every other. Every distribution of a.s.sets 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 a.n.a.lytical 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 cla.s.sical 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 a.n.a.lytical 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 a.n.a.lysis 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.

Obligation, the Roman term, meaning the relation of the parties to what the a.n.a.lytical jurists have called a right _in personam_ is an exotic in our law in that sense. Moreover the relation is not the significant thing for systematic purposes, as is shown by civilian tendencies in the phrases "active obligation" and "pa.s.sive obligation"

to extend the term from the relation to the capacity or claim to exact and duty to answer to the exaction. The phrase "right _in personam_"

and its co-phrase "right _in rem_" are so misleading in their implications, as any teacher soon learns, that we may leave them to the textbooks of a.n.a.lytical jurisprudence. In this lecture, I shall use the simple word "liability" for the situation whereby one may exact legally and the other is legally subjected to the exaction.

Using the word in that sense, I shall inquire into the philosophical basis of liability and the system of the law on that subject as related to that basis. Yellowplush said of spelling that every gentleman was ent.i.tled to his own. We have no authoritative inst.i.tutional book of Anglo-American law, enacted by sovereign authority, and hence every teacher of law is ent.i.tled to his own terminology.

So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, "Buy spear from side or bear it," that is, buy off the feud or fight it out. One who does an injury or stands between an injured person and his vengeance, by protecting a kinsman, a child or a domestic animal that has wrought an injury, must compound for the injury or bear the vengeance of the injured. As the social interest in peace and order--the general security in its lowest terms--comes to be secured more effectively by regulation and ultimate putting down of the feud as a remedy, payment of composition becomes a duty rather than a privilege, or in the case of injuries by persons or things in one's power a duty alternative to a duty of surrendering the offending child or animal. The next step is to measure the composition not in terms of the vengeance to be bought off but in terms of the injury. A final step is to put it in terms of reparation. These steps are taken haltingly and merge into one another, so that we may hear of a "penalty of reparation." But the result is to turn composition for vengeance into reparation for injury. Thus recovery of a sum of money by way of penalty for a delict is the historical starting point of liability.

One's neighbor whom one had injured or who had been injured by those whom one harbored was not the only personality that might desire vengeance in a primitive society. One might affront the G.o.ds, and by one's impiety in so doing might imperil the general security, since the angered G.o.ds were not unlikely to hit out indiscriminately and to cast pestilence or hurl lightning upon just and unjust alike in the community which harbored the impious wrongdoer. Hence if, in making a promise, one called the G.o.ds to witness it was needful that politically organized society, taking over a field of social control exercised by the priesthood, give a legal remedy to the promisee lest he invoke the aid of the G.o.ds and jeopardize the general security.

Again in making a promise one might call the people or the neighborhood to witness and might affront them by calling them to witness in vain. Here, too, the peace was threatened and politically organized society might give a remedy to the promisee, lest he invoke the help of his fellow citizens or his neighbors. A common case might be one where a composition was promised in this way for an injury not included in the detailed tariff of compositions that is the staple of ancient "codes." Another common case was where one who held another's property for some temporary purpose promised to return it. Such a case is lending; for before the days of coined money, the difference between lending a horse to go to the next town and lending ten sheep to enable the borrower to pay a composition is not perceptible. Thus another starting point of liability is recovery of a thing certain, or what was originally the same, a sum certain, promised in such wise as to endanger the general security if the promise is not carried out. In Roman law, the condiction, which is the type of actions _in personam_, and thus the starting point historically of rights _in personam_ and of theories of obligation, was at first a recovery of a thing certain or a sum certain due upon a promise of this sort. In juristic terms, the central idea of the beginnings of liability is duty to make composition for or otherwise avert wrath arising from the affronted dignity of some personality desirous of vengeance, whether an injured individual, a G.o.d or a politically organized society. Greek law and Roman law give the name of "insult" to legally cognizable injury to personality. Insult to a neighbor by injury to him or to one of his household, insult to the G.o.ds by impious breach of the promise they had witnessed, insult to the people by wanton disregard of the undertaking solemnly made in their presence, threatened the peace and order of society and called for legal remedy.

Lawyers begin to generalize and to frame conscious theories in the later part of the stage of the strict law. At first these theories are a.n.a.lytical rather than philosophical. The attempt is to frame general formulas by which the rigid rules of the strict law may be reconciled where they overlap or conflict or may be distinguished in their application where such overlapping or conflict threatens. By this time, the crude beginnings of liability in a duty to compound for insult or affront to man or G.o.ds or people, lest they be moved to vengeance, has developed into liability to answer for injuries caused by oneself or done by those persons or those things in one's power, and liability for certain promises made in solemn form. Thus the basis of liability has become twofold. It rests on the one hand upon duty to repair injury. It rests on the other hand upon duty to carry out formal undertakings. It is enough for this stage of legal development that all cases of liability may be referred to these two types and that useful distinctions may be reached therefrom. Consideration of why one should be held to repair injury, and why he should be held to formal undertakings, belongs to a later stage.

Juristic theory, beginning in the transition from the strict law to the stage of equity or natural law, becomes a force in the latter stage. As the relations with which the law must deal become more numerous and the situations calling for legal treatment become more complicated, it is no longer possible to have a simple, definite, detailed rule for every sort of case that can come before a tribunal, nor a fixed, absolute form for every legal transaction. Hence, under the leadership of philosophical jurists, men turn to logical development of the "nature" or ideal form of situations and to ethical ideas of what "good faith" or "good conscience" demands in particular relations or transactions. The strict law, relying on rule and form, took no account of intention as such. The words took effect quite independently of the thought behind them. But as lawyers began to reflect and to teach something more than a cla.s.s or professional tradition, as they began to be influenced by philosophy to give over purely mechanical methods and to measure things by reason rather than by arbitrary will, emphasis shifted from form to substance; from the letter to the spirit and intent. The statute was thought of as but the lawmaker's formulation of a principle of natural law. It was not the _uerba_ that were efficacious, as in the strict law, which had inherited the primitive faith in the power of words and thought of the legal formula as if it were a formula of incantation possessing inherent magical force. It was the _ratio iuris_, which transcended words and formulas. So also the traditional rule was not a magic formula discovered by our fathers. It was a customary expression of a principle of natural law. Likewise the formal transaction was not a bit of private magic employed to conjure up legal liability. It was the clothing in legally recognized vestments of an intention to do what reason and good faith demand in a given situation. When form and intention concurred the promisor must answer for what he undertook.

When the form used did not express or went beyond the intention or was the product of an apparent but not a real intention, the promisee was not to be enriched unjustly at the promisor's expense on the sole basis of the form. Moreover the duty was to be one of doing what good faith demanded, not one of doing literally and exactly what the letter of the undertaking called for. And although there was no express undertaking, there might be duties implied in the relation or situation or transaction, viewed as one of good faith, and one might be held to a standard of action because an upright and diligent man, who was his own master, would so act. Such is the mode of thinking in the cla.s.sical period of the Roman law and it is closely paralleled by an independent development of juristic thought in the rise of equity and the absorption of the law merchant in our law.

It was easy to fit the two categories, delict and formal undertaking, which had come down from the strict law, into the new mode of thought.