Gale Encyclopedia Of American Law 3Rd Edition Volume 13 P58 docx

to be taken outside of Germany. And in the first and second stages of a period of legislation the mechanical character of legal science is aggra- vated by the imperative theory, which is a concomitant of legislative activity. Austin’sprop- osition that law is command so complete that even the unwritten law must be given this character, since whatever the sovereign permits he commands, was simply rediscovered during the legislative ferment of the reform movement in English law. In the flowering-time of Papal legislation the canon l aw had already asserted it. Moreover, a period of legislation and codification has brought German jurists to a like conclusion. At such times, when law is felt to be positive, to be the command of the law-maker, a tendency to enact rules as such becomes manifest. Roman law, in its period of legislation, can furnish more than one example of the sort of law-making of which we complain to-day. Before the analytical school, which revived the imperative theory to meet the facts of an age of legislation, had become established, historical jurists led a revolt. But their jurisprudence is a jurisprudence of conceptions. Moreover, they have had little effect upon the actual course of Anglo-American law. The philosophical jurists have protested also and have appealed from purely legal considerations to considerations of reason and of natural law. But theirs, too, is a jurisprudence of conceptions, and their method, of itself, offers no relief. Their service has been in connection with the general sociological move- ment, in giving natural law a new and a modern aspect, and in promoting a general agreement among jurists on a sociological basis. In Europe, it is obvious that the different schools are coming together in a new sociological school that is to dominate juristic thought. Instead of seeking for an ideal universal law by metaphysical methods, the idea of all schools is to turn “the community of fact of mankind into a community of law in accord with the reasonable ordering of active life.” Hence they hold that “the less arbitrary the character of a rule and the more clearly it conforms to the nature of things, the more nearly does it approach to the norm of a perfect law.” The utilitarian theory of Bentham was a theory of legislation. The sociological theory of the present is a theory of legal science. Probably the chief merit of the new German code lies in its conformity in so large a degree to this theory. It lays down principles from which to deduce, not rules, but decisions; and decisions will indicate a rule only so long as the conditions to which they are applied cause them to express the principle. This, and not lax methods of equitable applica- tion, into which American courts are falling so generally, is the true way to make rules fit cases instead of making cases fit rules. An efficient cause of the failure of much American legislation is that it is founded on an assumption that it is enough for the State to command. Legislation has not been the product of preliminary study of the conditio ns to which it was to apply. It has not expressed social standards accurately. It has not responded accurately to social needs. Hence a large proportion has been nugatory in practice. But the difficulty is not, as some have assumed, that matters of private law are not within the legitimate scope of legislation. It is rather that legislation has approached them upon a false theory. Judicial law-making also has acted up on an erroneous theory; and its results are often quite as much disregarded in practice as are statutes. Judicial law-making, however, cannot escape, except within very narrow limits, until it is given a new starting point from without. Legislative law-making, on the contrary, may do so and is beginning to do so. That our case law at its maturity has acquired the sterility of a fully developed system, may be shown by abundant examples of its failure to respond to vital needs of present-day life. Its inadequacy to deal with employers’ liability; the failure of the theory of “general jurisprudence” of the Supreme Court of the United States to give us a uniform commercial law; the failure of American courts, with centuries of discussion before them, to work out a reasonable or certain law of future interests in land; the breakdown of the common law in the matter of discrimination by public service companies because of inability to make procedure enforce its doctrines and rules; its breakdown in the attempt to adjust water rights in our newer states, where there was opportunity for free development; its inability to hold promoters to their duty and to protect the interests of those who invest in corporate enterprises against mismanagement and breach of trust; its failure to work out a scheme of responsibility that will hold legal entities, or those who hide behind their skirts, to their duty to the public—all these failures, and many more might be adduced, speak for themselves. But compare GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 556 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE these failures with the great achievements of the youth of our case-law, with Lord Mansfield’s development of a law of quasi-contracts from the fictions of the common counts, with Lord Mansfield’s development of mercantile law by judicial decision, with Kent’s working out of equity for America from a handful of English decisions, with Marshall’s work in giving us a living constitution by judicial interpretation. Now and then, at present, we see vigorous life in remote corners of our case law, as, for instance, in the newer decisions as to surface and under- ground waters. But judicial revolt from mechani- cal methods to-day is more likely to take the form of “officious kindness” and flabby equitable application of law. Our judge-made law is losing its vitality, and it is a normal phenomenon that it should do so. I have suggested some examples of the failure of our case law to rise to social and legal emergencies. Let me point to some phases of its active operation which lead to the same conclusion. The manner in which the Fourteenth Amend- ment is applied affords a striking instance of the workings today of a jurisprudence of conceptions. Starting withtheconception that it was intendedto incorporate Spencer’s Social Statics in the funda- mental law of the United States, rules have been deduced that obstruct the way of social progress. The conception of liberty of contract, in particular, has given rise to rules and decisions which, tested by their practical operation, defeat liberty. As Mr. Olney says of the Adair Case, “it is archaic, it is a long step into the past, to conceive ofand deal with the relations between the employer in such industries and the employee, as if the parties were individuals.” The conception of freedom of contract is made the basis of a logical deduction. The courtdoes not inquire what the effect of sucha deduction will be, when applied to the actual situation. It does not observe that the result will be to produce a condition precisely the reverse of that which the conception originally contemplated. Again, the Commerce Clause of the Federal Constitution has been taken by one judge, at least, to bea constitutional enactment of a conception of free trade among the states. Deductions from this and like conceptions, assumed to express the meaning and the sole meaning of the clause, have given us rules which, when applied to the existing commercial and industrial situation, are wholly inadequate. Procedure, with respect to w hich every thoughtful lawyer must feel that we are inexcusably behind the rest of the English- speaking world, suffers especially from mechan- ical jurisprudence. The conception of a theory of the case, developed by the common-law forms of action, has, in nearly half of our code jurisdictions, nullified the legislative intent and made the practice more rigid than at common law. But this conception is regarded by many as fundamental. In deductions from this concep- tion they lose sight of the end of procedure, they make scientific procedure an end of itself, and thus, in the result, make adjective law an agency for defeating or delaying substantive law and justice instead of one for enforcing and speeding them. Aristotle discusses a project of a Greek reformer for enabling tribunals to render what he called a divided judgment. At that time, the judgment had to be absolute one way or the other. If a plaintiff claimed twenty minœ: when but eighteen were proved to be due him, there was no course but to find for the defendant. The proposal to correct this and to allow a finding for the eighteen minœ: due did not meet with Aristotle’s approval. He said: A juror who votes acquittal decides, not that the defendant owes nothing, but that he does not owe the twenty minœ: claimed. We smile now at Aristotle’shardandfast deduction, in the face of a manifestly absurd result, from his conception of the trial of an issue. But at least half our jurisdictions do the same thing essentially in this matter of the theory of a plaintiff’s case. That his pleadings and proofs disclose a case and a good case is not enough. The courts say they are not foreclosing that case; they are merely deciding upon the theory he has chosen to advance. Again, in the practice as to parties, the common-law conception that there must be a joint interest or a joint liability, because there must be one controversy and joint parties are as one party, has seriously interfered with the liberal plan of the framers of the original Code of Civil Procedure. I can only cite some of the cases. But let me compare with our American cases a recent English decision. In that case two plaintiffs sued for an injunction against infringement of copy- right and for an accounting of profits. Only one was owner of the copyright; the other was a mere licensee. But which one was owner was not clear. The court did not deem it necessary to take up this question and determine whether one only GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 557 LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE was owner and if so which, although a money recovery was to be had. So long as the plaintiffs were agreed among themselves and the defendant had wronged and owed money to one or the other of them, it affirmed a decree for an injunction and accounting. Although in strictness it might be that only one was entitled to judgment and so it would be necessary to determine which one, the court wasted no time on that question so long as nothing turned on it. Here the court was conscious that procedure was a mere means. It strove to vindicate the substantive law. It was not set upon adhering with scrupulous exactness to logical deductions from a conception of adjective law at the expense of the merits the latter exists to give effect to. Trial procedure is full of mechanical juris- prudence born of deduction from conceptions. The decisions as to the effect of a view of the locus by a jury, in which judgments are reversed unless jurors are told, in the face of common-sense, not to use what they see as evidence, in order to vindicate a conception of the duty of a court of review; the wilderness of decisions as to the province of court and jury, in which, carrying a conception of distinction between law and fact to extreme logical results, the courts at one moment assume that jurors are perfect and will absolutely follow an abstract instruction to its logical consequences, in the face of common-sense and the evidence, and at the next assume that they are fools and will be misled by anything not relevant that drops from the court; and the practice of instructions, one way or the other, when doubtful points of law arise, a general verdict, and a new trial, if the court of review takes another view of the point, when the verdict could have been taken quite as well subject to the point of law reserved, and a new trial obviated, illustrate forcibly the extent to which procedural conceptions, pursued for their own sake, may defeat the end of procedure and defeat the substance of the law. For delay of justice is denial of justice. Every time a party goes out of court on a mere point of practice, substantive law suffers an injury. The life of the law is in its enforcement. Evidence also has been a prolific field for the unchecked jurisprudence of conceptions. But one example must suffice. The decisions by which in a majority of jurisdictions jurors are not permitted to learn directly the views of standard texts up on scientific and technical subjects, but must pass upon the conflicting opinions of experts without the aid of the impartial sources of information to which any common-sense man would resort in practice, carry out a conception of the competency of evidence at the expense of the end of evidence. In one case, the question was whether death had taken place from strangulation. The trial was held in a rural community, and the medical experts accessible had had no actual experience of cases of strangulation of the sort involved. But standard medical works did relate cases precisely in point, and, after proof that they were standard authorities, a physic ian was allowed to testify with respect to the symptoms disclosed in the light of the recorded experience of mankind. For this, the jud gment was reversed. To vindicate a juridical conception, the court shut out the best possible means of information, in the circumstances of the case in hand, and allowed an accused person to escape because of the inevitable limits of experience of a rural physician. How far the mechanical jurisprudence, of which the example just given is an extreme case, forgets the end in the means, is made manifest by the stock objection to attempts at introduc- ing a common-sense and business-like proce- dure. We are told that formal and technical procedure “makes better lawyers.” One might ask whether the making of good lawyers is the end of law. But what is a good lawyer? Let Ulpian answer: lus est ars boni et œ:qui. Cuius merito quis nos sacerdotes appellet; iustitiam namque colimus et boni et œ:qui, notitiam profit- emur, œ:quum ab iniquo separantes, licitum ab illicto discernentes, bonos non solum metu pœ:narum, verum etiam prœ:miorum quoque exhortatione efficere cupientes veram, nisi fallor, philosophiam, non simu- latam affectantes. The nadir of mechanical jurisprudence is reached when conceptions are used, not as premises from which to reason, but as ultimate solutions. So used, they cease to be conceptions and become empty words. James has called attention to a like vice in philosophical thought: Metaphysics has usually followed a very primitive kind of quest. You know how men have always hankered after unlawful magic, and you know what a great part in magic words have always played. If you have his name, or the formula of incantation that binds him, you can control the spirit, genie, afrite, or whatever the power may be. So the universe has always appeared to the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 558 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE natural mind as a kind of enigma of which the key must be sought in the shape of some illuminating or power-bringing word or name. That word names the universe’s principle, and to possess it is after a fashion to possess the universe itself. “God,”“Mat- ter,”“Reason,”“the Absolute,”“Energy,” are so many solving names. You can rest when you have them. You are at the end of your meta-physical quest. Current decisions and discussions are full of such solving words: estoppel, malice, privity, implied, intentio n of the testator, vested and contingent—when we arrive at these we are assumed to be at the end of our juristic search. Like Habib in the Arabian Nights, we wave aloft our scimitar and pronounce the talismanic word. With legislative law-making in the grip of the imperative theory and its arbitrary results, and judicial decision in the grip of a jurispru- dence of conceptions and its equally arbitrary results, whither are we to turn? Judicial law- making cannot serve us. As things are, the cure would be worse than the disease. No court could hold such hearings as those had by legislative committees upon measures for the protection of operatives, described by Mrs. Kelley, or that recently had before the Interstate Commerce Commission as to uniform bills of lading. We must soon have a new starting-point that only legislation can afford. That we may put the sociological, the pragmatic theory behind legislation, is demonstrated every day. Legislative reference bureaus, the Comparative Law Bureau, the Conferences of Commissioners on Uniform State Laws, such hearings as the one before the Interstate Comme rce Commis- sion already referred to, hearings before legis- lative committees, such conferences as the one held recently with respect to the Sherman Anti-trust Law, bar-association discussions of reforms in procedure—all these are furnishing abundant material for legislation of the best type. No such resources are open to the courts. Hence common-law lawyers will some day abandon their traditional attitude toward legis- lation; will welcome legislation and will make it what it should be. The part played by jurists in the best days of Roman legislation, and the part they have taken in modern Continental legisla- tion, should convince us, if need be, that juristic principles may be recognized and juristic speculation may be put into effect quite as well by legislation as by judicial decision. Herein is a noble task for the legal scholars of America. To test the conceptions worked out in the common law by the requirements of the new juristic theory, to lay sure foundations for the ultimate legislative restatement of the law, from which judicial decision shall start afresh— this is as great an opportunity as has fallen to the jurists of any age. The end of a period of development by judicial decision is marked by the prevalence of two types of judges; those who think it a great display of learning and of judicial independence to render what Chief Justice Erle called “strong decisions,” and those who fix their gaze upon the raw equities of a cause and forage in the books for cases to sustain the desired result. But the task of a judge is to make a principle living, not by deducing from it rules, to be, like the Freshman’s hero, “immortal for a great many years,” but by achieving thoroughly the less ambitious but more useful labor of giving a fresh illustration of the intelligent application of the principle to a concrete cause, producing a workable and a just result. The real genius of our common law is in this, not in an eternal case-law. Let the principles be formulated by whom or derived from whence you will. The Common Law will look to courts to develop and expound them, the Civil Law to doctrinal treatises. It is only a lip service to our common law that would condemn it to a perpetuity of mechanical jurisprudence through distrust of leg islation. Source: Reprinted from 8 Columbia Law Review 605. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 559 LEGAL SCHOLARSHIP MECHANICAL JURISPRUDENCE Legal Scholarship The Causes of Popular Dissatisfaction with the Administration of Justice Roscoe Pound, 1906 R OSCOE POUND presented “The Causes of Popular Dissatisfaction with the Admin- istration of Justice” at the annual convention of the AMERICAN BAR ASSOCIATION in 1906. The lecture was a call to improve court admin- istration and a preview of his theory of law. It has remained a classic statemen t on the need for efficient and e quitable judicial administration. Pound acknowledged that some people have always been dissatisfied with the law, but he contended that the courts did indeed need to be administered more effectively. He also n oted that the adversary system o ften turned litigation into a game, irritating parties, jurors, and witne sses and giving the public the “falsenotionofthepurposeandendoflaw.” In addition, he attacked the overlapping jurisdiction of courts and argued that each state had too many courts. In 1909 Pound organized the First National Conference on Criminal Law and Criminology, which gathered participants from many profes- sions to discuss ways to reform the criminal law. The conference was one of the first of Pound’s efforts to give practical application to sociologi- cal jurisprudence. Later, in 1929 President HERBERT HOOVER appointed Pound to the Wick- ersham Commission, the popular name for the National Commission on Law Observance and Enforcement. This commission conducted the first comprehensive national study of crime and law enforcement in U.S. history. The findings of the commission, which were published in fourteen volumes in 1931 and 1932, covered every aspect of the criminal justice system, including the causes of crime, police and prosecutorial procedures, and the importance of probation and parole. Pound’s lecture is a treasure trove of ideas concerning the management of courts. The area of court administration has grown since the 1960s, and court administrators now play an active role in monitoring and managing case- loads. Many states have also heeded Pound’s advice and unified their trial courts, thereby eliminating several layers of courts. k The Causes of Popular Dissatisfaction with the Administration of Justice Dissatisfaction with the administration of justice is as old as law. Not to go outside of our own legal system, discontent has an ancient and unbroken pedigree. The Anglo-Saxon laws continually direct that justice is to be done equally to rich and to poor and the king exhorts that the peace be kept better than has been wont, and that “men of every order readily submit each to that law which is appropriate to him.” The author of the apocryphal Mirror of Justices gives a list of one hundred and fifty-five abuses in legal administra- tion, and names it as one of the chief abuses of the degenerate times in which he lived that execu- tions of judges for corrupt or illegal decisions had ceased. Wyclif complains that “lawyers make process by subtlety and cavilations of law civil, 560 REFLECTIONS ON LAW AND SOCIETY that is much heathen men’s law, and do not accept the form of the gospel, as if the gospel were not so good as pagan’slaw.” Starkey, in the reign of Henry VIII, says: “Everyone that can color reason maketh a stop to the best law that is beforetime devised.” James I reminded his judges that “the law was founded upon reason, and that he and others had reason as well as the judges.” In the eighteenth century, it was complained that the bench was occupied by “legal monks, utterly ignorant of human nature and of the affairs of men.” In the nineteenth century the vehement criticism of the period of the reform movement needs only to be mentioned. In other words, as long as there have been laws and lawyers, conscientious and well-meaning men have be- lieved that laws were mere arbitrary technicalities, and that the attempt to regulate the relations of mankind in accordance with them resulted largely in injustice. But we must not be deceived by this innocuous and inevitable discontent with all law into overlooking or underrating the real and serious dissatisfaction with courts and lack of respect for law which exists in the United States today. In spite of the violent opposition which the doctrine of judicial power over unconstitutional legislation at first encountered, the tendency to give the fullest scope to the common law doctrine of supremacy of law and to tie down administration by common law liabilities and judicial review, was, until recently, very marked. Today, the contrary tendency is no less marked. Courts are distrusted, and executive boards and commissions with summary and plenary powers, freed, so far as constitutions will permit, from judicial review, have become the fashion. It will be assumed, then, that there is more than the normal amount of dissatisfaction with the present-day administration of justice in America. Assuming this, the first step must be diagnosis, and diagnosis will be the sole purpose of this paper. It will attempt only to discover and to point out the causes of current popular dissatis- faction. The inquiry will be limited, moreover, to civil justice. For while the criminal law attracts more notice, and punishment seems to have greater interest for the lay mind than the civil remedies of prevention and compensation, the true interest of the modern community is in the civil administration of justice. Revenge and its modern outgrowth, punishment, belong to the past of legal history. The rules which define these invisible boundaries, within which each may act without conflict with the activities of his fellows in a busy and crowded world, upon which investor, promoter, buyer, seller, employer, and employee must rely consciously or subcon- sciously in their every-day transactions, are conditions precedent of modern social and industrial organization. With the scope of inquiry so limited, the causes of dissatisfaction with the administration of justice may be grouped under four main heads: (1) Causes for dissatisfaction with any legal system, (2) causes lying in the peculiarities of our Anglo-American legal system, (3) causes lying in our American judicial organization and procedure, and (4) causes lying in the environ- ment of our judicial administration. It needs but a superficial acquaintance with literature to show that all legal systems among all peoples have given rise to the same complaints. Even the wonderful mechanism of modern German judicial administration is said to be distrusted by the people on the time-worn ground that there is one law for the rich and another for the poor. It is obvious, therefore, that there must be some cause or causes inherent in all law and in all legal systems in order to produce this universal and invariable effect. These causes of dissatisfaction with any system of law I believe to be the following: (1) The necessarily mechanical operation of rules, and hence of laws; (2) the inevitable difference in rate of progress between law and public opinion; (3) the general popular assumption that the administration of justice is an easy task, to which anyone is competent; and (4) popular impa- tience of restraint. The most important and most constant cause of dissatisfaction with all law at all times is to be found in the necessarily mechanical operation of legal rules. This is one of the penalties of uniformity. Legal history shows an oscillation between wide judicial discretion on the one hand and strict confinement of the magistrate by minute and detailed rules upon the other hand. From time to time more or less reversion to justice without law be comes necessary in order to bring the public adminis- tration of justice into touch with changed moral, social, or political conditions. But such periods of reversion result only in new rules or changed rules. In time the modes of exercising discretion become fixed, the course of judicial action becomes stable and uniform, and the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 561 LEGAL SCHOLARSHIP THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE new elem ent, whether custom or equity or natural law, becomes as rigid and mechanical as the old. This mechanical action of the law may be minimized, but it cannot be obviated. Laws are general rules ; and the process of making them general involves elimination of the imma- terial elements of particular controversies. If all controversies were alike or if the degree in which actual controversies approximate to the recog- nized types could be calculated with precision, this would not matter. The difficulty is that in practice they approximate to these types in infinite gradations. When we eliminate immate- rial factors to reach a general rule, we can never entirely avoid eliminating factors which will be more or less material in some particular contro- versy. If to meet this inherent difficulty in administering justice according to law we intro- duce a judicial dispensing power, the result is uncertainty and an intolerable scope for the personal equation of the magistrate. If we turn to the other extreme and pile up exceptions and qualifications and provisos, the legal system becomes cumbrous and unworkable. Hence the law has always ended in a compromise, in a middle course between wide discretion and over- minute legislation. In reaching this middle ground, some sacrifice of flexibility of application to particular cases is inevitable. In consequence, the adjustment of the relations of man and man according to these rules will of necessity appear more or less arbitrary and more or less in conflict with the ethical notions of individuals. In periods of absolute or generally received moral systems, the contrast between legal results and strict ethical requirements will appeal only to individuals. In periods of free individual thought in morals and ethics, and especially in an age of social and industrial transition, this contrast is greatly intensified and appeals to large classes of society. Justice, which is the end of law, is the ideal compromise between the activities of all in a cro wded world. The law seeks to harmonize these activities and to adjust the relations of every man with his fellows so as to accord with the moral sense of the commu- nity. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none too well, have conflicting ideas of justice, the task is extremely difficult. It is impossible that legal and ethical ideas should be in entire accord in such a society. The individual looks at cases one by one and measures them by his individual sense of right and wrong. The lawyer must look at cases in gross and m ust me asure them largely by a n artificial s tandard. He mu st apply the ethics of the community, not his own. If discretion is given him, h is view wil l be that of the class from which he comes. If his hands are tied by law, he must apply the ethics of the past as formulated in common law and legislation. In either event, judicial and individual ethical standards will diverge. And this divergence between the ethical and the legal, as each individua l sees it, makes him say with Luther, “Good ju rist, bad Christian.” A closely related cause of dissatisfaction with the administration of justice according to law is to be found in the inevitable difference in rate of progress between law and public opinion. In order to preclude corruption, to exclude the personal prejudices of magistrates, and to mini- mize individual incompetency, law formulates the moral sentiments of the community in rules to which the judgments of tribunals must conform. These rules, being formulations of public opinion, cannot exist until public opinion has become fixed and settled, and cannot change until a change of public opinion has become complete. It follows that this difficulty in the judicial administration of justice, like the preced- ing, may be minimized, but not obviated. In a rude age the Teutonic moots in which every free man took a hand might be possible. But these tribunals broke under pressure of business and became ordinary courts with permanent judges. The Athenians conceived that the people them- selves should decide each case. But the Athenian dikastery, in which controversies were submitted to blocks of several hundred citizens by way of reaching the will of the democracy, proved to register its caprice for the moment rather than its permanent will. Modern experience with juries, especially in commercial causes, does not warrant us in hoping much from any form of judicial referendum. Public opinion must affect the administration of justice through the rules by which justice is administered rather than through the direct administration. All interference with the uniform and automatic application of these rules, when actual controversies arise, introduces an anti-legal element which becomes intolerable. But, as public opinion affects tribunals through the rules by which they decide and these rules once made, stand till abrogated or altered, any system of law will be made up of successive strata of rules and doctrines representing successive and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 562 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE often widely divergent periods of public opinion. In this sense, law is often in very truth a government of the living by the dead. The unconscious changes of judicial law making and the direct alterations of legislation and codifica- tion operate to make this government by the dead reasonably tolerable. But here again we must pay a price for certainty and uniformity. The law does not respond quickly to new conditions. It does not change until ill effects are felt; often not until they are felt acutely. The moral or intellectual or economic change must come first. While it is coming, and until it is so complete as to affect the law and formulate itself therein, friction must ensue. In an age of rapid moral, intellectual, and economic changes, often crossing one another and producing numerous minor resultants, this friction cannot fail to be in excess. A third perennial source of popular dissatis- faction with the administration of justice accord- ing to law may be found in the popular assumption that the administration of justice is an easy task to which anyone is competent. Laws may be compared to the formulas of engineers. They sum up the experience of many courts with many cases and enable the magistrate to apply that experience subconsciously. So, the formula enables the engineer to make use of the accumu- lated experience of past builders, even though he could not work out a step in its evolution by himself. A layman is no more competent to construct or to apply the one formula than the other. Each requires special knowledge and special preparation. Nonetheless, the notion that anyone is competent to adjudicate the intricate controver- sies of a modern community contributes to the unsatisfactory administration of justice in many parts of the United States. The older states have generally outgrown it. But it is felt in extravagant powers of juries, lay judges of probate and legislative or judicial law making against stare decisis, in most of the commonwealths of the South and West. The public seldom realizes how much it is interested in maintaining the highest scientific standard in the administration of justice. There is no more certain protection against corruption, prejudice, class feeling, or incompe- tence. Publicity will avail something. But the daily criticism of trained minds, the knowledge that nothing which does not conform to the principles and received doctrines of scientific jurisprudence will escape notice, does more than any other agency for the every-day purity and efficiency of courts of justice. Another necessary source of dissatisfaction with judicial administration of justice is to be found in popular impatience of restraint. Law involves restraint and regulation, with the sheriff and his posse in the background to enforce it. But, however necessary and salutary this restraint, men have never been reconciled to it entirely. The very fact that it is a compromise between the individual and his fellows makes the individual, who must abate some part of his activities in the interest of his fellows, more or less restive. In an age of absolute theories, monarchical or demo- cratic, this restiveness is acute. A conspicuous example is to be seen in the contest between the king and the common law courts in the seventeenth century. An equally conspicuous example is to be seen in the attitude of the frontiersman toward state-imposed justice. “The unthinking sons of the sage brush,” says Owen Wister, “ill tolerate anything which stands for discipline, good order and obedience; and the man who lets another command him they despise. I can think of no threat more evil for our democracy, for it is a fine thing diseased and perverted, namely, the spirit of independence gone drunk.” This is an extreme case. But in a lesser degree the feeling that each individual, as an organ of the sovereign democracy, is above the law he helps to make, fosters everywhere a disrespect for legal methods and institutions and aspiritofresistancetothem.Itis“the reason of this our artificial man the commonwealth,” says Hobbes, “andhiscommandthatmakethlaw.” This man, however, is abstract. The concrete man in the street or the concrete mob is much more obvious; and it is no wonder that individuals and even classes of individuals fail to draw the distinction. A considerable portion of current dissatisfac- tion with the administration of justice must be attributed to the universal causes just considered. Conceding this, we have next to recognize that there are potent causes in operation of a character entirely different. Under the second main head, causes lying in our peculiar legal system, I should enumerate five: (1) The individualist spirit of our common law, which agrees ill with a collectivist age; (2) the common law doctrine of contentious procedure, which turns litigation into a game; (3) political jealousy, due to the strain put upon our legal system by the doctrine of supremacy of law; (4) the lack of general ideas or legal philosophy, so characteristic of Anglo-American law, which GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 563 LEGAL SCHOLARSHIP THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE gives us petty tinkering where comprehensive reform is needed; and (5) defects of form due to the circumstance that the bulk of our legal system is still case law. The first of these, conflict between the individualist spirit of the common law and the collectivist spirit of the present age, has been treated of on another occasion. What was said then need not be repeated. Suffice it to point out two examples. From the beginning, the main reliance of our common law system has been individual initiative. The main security for the peace at common law is private prosecution of offenders. The chief security for the efficiency and honesty of public officers is mandamus or injunction by a taxpayer to prevent waste of the proceeds of taxation. The reliance for keeping public service companies to their duty in treating all alike at reasonable price is an action to recover damages. Moreover, the individual is supposed at common law to be able to look out for himself and to need no administrative protection. If he is injured through contributory negligence, no theory of comparative negligence comes to his relief; if he hires as an employee, he assumes the risk of the employment; if he buys goods, the rule is caveat emptor. In our modern industrial society, this whole scheme of individual initiative is breaking down. Private prosecution has become obsolete. Mandamus and injunction have failed to prevent rings and bosses from plundering public funds. Private suits against carriers for damages have proved no preventive of discrimination and extortionate rates. The doctrine of assumption of risk becomes brutal under modern conditions of employment. An action for damages is no comfort to us when we are sold diseased beef or poisonous canned goods. At all these points, and they are points of every-day contact with the most vital public interests, common law methods of relief have failed. The courts have not been able to do the work which the common law doctrine of supremacy of law imposed on them. A wide- spread feeling that the courts are inefficient has been a necessary result. But, along with this, another phase of the individualism of the common law has served to increase public irritation. At the very time the courts have appeared powerless themselves to give relief, they have seemed to obstruct public efforts to get relief by legislation. The chief concern of the common law is to secure and protect individual rights. “The public good,” says Blackstone, “is in nothing more essentially interested than in the protection of every individual’s private rights.” Such, it goes without saying, is not the popular view today. Today we look to society for protection against individuals, natural or artifi- cial, and we resent doctrines that protect these individuals against society for fear society will oppress us. But the common law guaranties of individual rights are established in our constitu- tions, state and federal. So that, while in England these common law dogmas have had to give way to modern legislation, in America they stand continually between the people, or large classes of the people, and legislation they desire. In consequence, the courts have been put in a false position of doing nothing and obstructing everything, which it is impossible for the layman to interpret aright. A no less potent source of irritation lies in our American exaggerations of the common law contentious procedure. The sporting theory of justice, the “instinct of giving the game fair play,” as Professor Wigmore has put it, is so rooted in the profession in America that most of us take it for a fundamental legal tenet. But it is probably only a survival of the days when a lawsuit was a fight between two clans in which change of venue had been taken to the forum. So far from being a fundamental fact of jurisprudence, it is peculiar to Anglo-American law; and it has been strongly curbed in modern English practice. With us, it is not merely in full acceptance, it has been developed and its collateral possibilities have been cultivated to the furthest extent. Hence in America we take it as a matter of course that a judge should be a mere umpire, to pass upon objections and hold counsel to the rules of the game, and that the parties should fight out their own game in their own way without judicial interference. We resent such interference as unfair, even when in the interests of justice. The idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point. It leads the most conscientious judge to feel that he is merely to decide the contest, as counsel present it, according to the rules of the game, not to search independently for truth and justice. It leads counsel to forget that they are o fficers of the co urt a nd to de al with the rules of law and procedure exactly as the professional football coach with the rules of the sport. It leads to exertion to “get error into the record” rather than to dispose of the contro- versy finally and upon its merits. It turns witnesses, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 564 REFLECTIONS ON LAW AND SOCIETY PRIMARY DOCUMENTS LEGAL SCHOLARSHIP THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE and especially expert witnesses, into partis ans pure and simple. It leads to sensational cross- examinations “to affect credit,” wh ich have made the wit ness stand “the slaughter house of reputa- tions.” It prevents the trial court from restraining the bullying of witnesses and creates a general dislike, if not fear , of the witness function which impairs the administration of justice. It keeps alive the unfortun ate exchequer rule, dead in the country of its or igin, a ccording to wh ich e rrors in the admission or rejection of evidence are presumed to be prejudicial and hence demand a new trial. It grants new trials because by inability to procure a bill of exceptions a party has lost the chance to play another in ning in the game of justice. It creates vested rights in errors of procedure, of the benefit whereof parties are not to be deprived. The inquiry is not, Wh at d o substantive law and justice require? Instead, the inquiry is: Have the rules of the game been carried out strictly? If any material infraction is discovered, just as the football rules put back the offending team five or ten or fifteen yards, as the case may be, our sporting theory of ju stice awards new trials, or reverses judgments, or sustains demu rrers in the interest of regula r p lay. The effect of our exaggerated contentious procedure is not only to irritate parties, witnesses and jurors in particular cases, but to give to the whole community a false notion of the purpose and end of law. Hence comes, in large measure, the modern American race to beat the law. If the law is a mere game, neither the players who take part in it nor the public who witness it can be expected to yield to its spirit when their interests are served by evading it. And this is doubly true in a time which requires all institutions to be economically efficient and socially useful. We need not wonder that one part of the community strain their oaths in the jury box and find verdicts against unpopular litigants in the teeth of law and evidence, while another part retain lawyers by the year to advise how to evade wh at to them ar e unintelligent and unreasonable restrictions upon necessary modes of doing business. Thus the courts, instituted to administer justice according to law, are made agents or abettors of lawlessness. Another source of irritation at our American courts is political jealousy due to the strain put upon our legal system by the doctrine of the supremacy of law. By virtue of this doctrine, which has become fundamental in our polity, the law restrains, not individuals alone, but a whole people. The people so restrained would be likely in any event to be jealous of the visible agents of restraint. Even more is this true in that the subjects which our constitutional polity commits to the courts are largely matters of economics, politics, and sociology upon which a democracy is peculiarly sensitive. Not only are these matters made into legal questions, but they are tried as incidents of private litigation. This phase of the common law doctrine was felt as a grievance in the seventeenth century. “I tell you plainly,” said Bacon, as attorney general, in arguing a question of prerogative to the judges, “I tell you plainly it is little better than a by-let or crooked creek to try whether the king hath power to erect this office in an assize between Brownlow and Michell.” King Demos must feel much the same at seeing the constitutionality of the Missouri Compromise tried in an action of trespass, at seeing the validity of the legal tender laws tried on pleas of payment in private litigation, at seeing the power of the federal government to carry on the Civil War tried judicially in admiralty, at seeing the income tax overthrown in a stockholder’sbilltoenjoin waste of corporate assets and at seeing the important political questions in the Insular Cases disposed of in forfeiture proceedings against a few trifling imports. Nor is this the only phase of the common law doctrine of supremacy of law which produces political jealousy of the courts. Even more must the layman be struck with the spectacle of law paralyzing administration which our polity so frequently presents. The difficulties with writs of habeas corpus which the federal government encountered during the Civil War and the recent case of the income tax will occur to you at once. In my own state, in a few years we have seen a freight-rate law suspended by decree of a court and have seen the collection of taxes from railroad companies, needed for the every- day conduct of public business, tied up by an injunction. The strain put upon judicial institu- tions by such litigation is obviously very great. Lack of general idea s and absence of any philosophy of law, which has been characteristic of our law from the beginning and has been a point of pride at least since the time of Coke, contributes its mite also toward the causes of dissatisfaction with courts. For one thing, it keeps us in the thrall of a fiction. There is a strong aversion to straightforward change of any important legal doctrine. The cry is interpret it. But such interpretation is spurious. It is legislation. And to interpret an obnoxious rule out of existence rather than to meet it fairly and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY 565 LEGAL SCHOLARSHIP THE CAUSES OF POPULAR DISSATISFACTION WITH THE ADMINISTRATION OF JUSTICE . altered, any system of law will be made up of successive strata of rules and doctrines representing successive and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 562 REFLECTIONS ON LAW AND SOCIETY. law; (4) the lack of general ideas or legal philosophy, so characteristic of Anglo -American law, which GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PRIMARY DOCUMENTS REFLECTIONS ON LAW AND SOCIETY. common law that would condemn it to a perpetuity of mechanical jurisprudence through distrust of leg islation. Source: Reprinted from 8 Columbia Law Review 605. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD