By Roscoe Pound1
Let me begin with a quotation:
"[There] is no doubt but that our law and the order thereof is over-confuse[d]. It is infinite and without order or end. There is no stable ground therein nor sure stay; but every one that can color reason maketh a stop to the best law that is before time devised. The subtlety of one serjeant shall [make] inert and destroy all the judgments of many wise men before time received. There is no stable ground in our common law to lean unto. The judgments of years be infinite and full of much controversy. . . . The judges are not bound to follow them as a rule, but after their own liberty they have authority to judge, according as they are instructed by the Serjeants, and as the circumstance of the case doth them move. And this maketh judgments and processes of our law to be without end and infinite; this causeth suits to be long in decision. Therefore, to remedy this matter groundly, it were necessary in our law to use the same remedy that Justinian did in the law of the Romans, to bring this infinite process to certain ends, to cut away these long laws, and by the wisdom of some politic and wise men institute a few and better laws and ordinances."2
1 [Carter Professor of Jurisprudence in Harvard University, and member of Editorial Committee for this Series. Address delivered before the American Political Science Association at Buffalo. December 28, 1911. Reprinted from the American Political Science Review, vol. vii, no. 3, pp. 361 seq., August 1915. Some additions have been made to the notes.]
2 Maitland, "English Law and the Renaissance," 42.
Such are the words Starkey puts into the mouth of Reginald Pole in a dialogue submitted to Henry VIII. If in large part they have a familiar sound, and need only a dress of modern English to pass for a clipping from a recent periodical, an emanation from the American legal muckraker, it is partly because the relation of judging to lawmaking is a perennial problem and partly because that time was (as the present is also) a period of legislation following upon one of common law. In a later period of legislative activity, after an ineffectual attempt to reform the law and procedure of England, Cromwell was forced to say, referring to bench and bar, "the sons of Zeruiah are too hard for us." In still a later period of legislation, the period of the legislative reform movement, Bentham was wont to say that the law was made by "Judge & Company"3 - i.e. by the bench and bar - and to accuse the lawyer of chuckling "over the supposed defeat of the legislature with a fond exultation which all his discretion could not persuade him to suppress." To-day the relation of courts to legislation has become a world-wide question, following the development of legislative lawmaking through modern parliaments. On the Continent the last decade has seen the rise of a great juristic literature upon the subject. Whether, as in France, new demands are made upon old codes, which have acquired a settled gloss of doctrine and jurisprudence, or, as in Germany, the principles of a new code await juristic development at many important points, or, as in the United States, a rapidly growing body of written law is adjusting to a stable and none too flexible body of traditional principles, - under one name or another, juridical method has become a chief subject of discussion. Even our problem of judicial power with respect to unconstitutional legislation has ceased to be local. Marbury v. Madison has been cited and followed by a court of Roman-Dutch lawyers in South Africa.4 With the adoption of a written constitution, the subject has become acute in Australia and Australian courts and lawyers are insisting upon the American doctrine in the face of a decision of the Privy Council in England to the contrary.5 If we bear in mind that the relation of courts to legislation is neither a new question nor a local question, we shall be able to look upon more than one aspect of the matter with greater equanimity.
' "Works" (Bowring edition), v. 369.
According to the beautifully simple theory of separation of powers three wholly distinct departments have for their several and exclusive functions to make laws, to execute laws, to apply laws to controversies calling for judicial decision. It is a commonplace that a complete separation of this sort has never existed anywhere and that the lines, as we draw them in our constitutional law, are historical rather than analytical. But the theory itself, so far as it confines the judicial function to mere application of a rule formulated in advance by an extrajudicial agency, proceeds upon an eighteenth century conception of law and of lawmaking which we cannot accept to-day.
Jurists of the eighteenth century had no doubt that a system of law, complete in every detail, might be constructed for any country by any competent thinker by deduction from abstract principles. They thought of the legal system as a structure which might be built over again at pleasure in accordance with one's ideal of right. Hence their conception of legal science was a discovery and formulation of this ideal, as something unchangeable and independent of human recognition, whereby they might hand over to the legislator a model code, to the judge a touchstone of pure law, to the citizen an infallible guide to conduct. So long as men believed in this absolute natural law, they were justified in laying down that it was for the legislator to discover and enact this model code and for the judge simply to apply it. And even after they ceased to believe in it, two theories which had great currency served to keep alive the resulting conception of the judicial function. One was the tradition of absolute legal principles, discovered and applied by courts, but existing prior to and independent of all judicial decision. Laid down by Blackstone, this notion that judicial decisions were merely evidence of law, or of that part of the law not evidenced by statutes, was accepted as a fundamental proposition. Austin characterized it justly as "the childish fiction, employed by our judges, that judiciary or common law is not made by them, but is a miraculous something, made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges."6 Historically, it represents the Germanic conception of law, the "sighing of the creature for the justice and truth of his creator"7 which, Heusler tells us, is to be found in every law book of the middle ages. Such a tradition, well established in the eighteenth century, lent itself at once to the juristic theory of that time and to the resulting theory of the judicial office. Moreover, it was reinforced presently from another quarter. After the historical jurists had overthrown the eighteenth century juristic theory, they acquiesced in a learned tradition on the Continent which confined historical study to the texts of the Roman law and they created a learned tradition in America which confined the jurist to the classical common law. Accordingly, ostensibly the judicial function remained purely one of application. Men differed only as to what was to be applied. To some it was the command of the sovereign, expressed normally in legislation. To others it was natural law, which might at any time be revealed as a whole to the legislator and promulgated in a code. To others it was the principles of the common law, evidenced by prior decisions or declared by statutes. To others it was the body of legal principles implicit in the sources to which the learned tradition confined historical study and derived therefrom by legal reasoning. In any event it was assumed that the judge in every sort of case merely applied a rule which had a prior independent existence. A German writer has put the received theory thus: The court is an automaton, a sort of judicial slot machine. The necessary machinery has been provided in advance by legislation or by received legal principles, and one has but to put in the facts above and draw out the decision below. True, he says, the facts do not always fit the machinery, and hence we may have to thump and joggle the machinery a bit in order to get anything out. But even in extreme cases of this departure from the purely automatic, the decision is attributed not at all to the thumping and joggling process but solely to the machine.8 It goes without saying that such a conception of the process of judicial decision cannot stand the critical scrutiny to which all legal and political institutions are now subjected. Men insist upon knowing where the preexisting rule was to be found before the judges discovered and applied it, in what form it existed, and how and whence it derived its form and obtained its authority. And when, as a result of such inquiries, the rule seems to have sprung full-fledged from the judicial head, the assumption that the judicial function is one of interpretation and application only, leads to the conclusion that the courts are exercising a usurped authority. The true conclusion is rather that our theory of the nature of the judicial function is unsound. It is a fiction, born in periods of absolute and unchangeable law. If all legal rules are contained in immutable form in holy writ or in twelve tables or in a code or in a received corpus juris or in a custom of the realm whose principles are authoritatively evidenced by a body of prior decisions, not only must new situations be met by deduction and analogical extension under the guise of interpretation, but the inevitable changes to which all law is subject must be hidden under the same guise. To-day, when all recognize, nay insist, that legal systems do and must grow, that legal principles are not absolute, but are relative to time and place, and that juridical idealism may go no further than the ideals of an epoch, the fiction should be discarded. The analytical jurists did a great service to legal science when they exposed this fiction, though their conclusion that a complete code should be enacted in order to put an end to the process of judicial lawmaking shows that they saw but half of the truth. For the application of law is not and ought not to be a purely mechanical process. Laws are not ends in themselves; they are means toward the administration of justice. Hence within somewhat wide limits courts must be free to deal with the individual case so as to meet the demands of justice between the parties. Any considerable narrowing of these limits, any confining of the judicial function by too many hard and fast rules, soon defeats the purpose for which law exists. Application of law must involve not logic merely but a measure of discretion as well. All attempts to eradicate the latter element and to make the law purely mechanical in its operation have ended in failure. Justice demands that instead of fitting the cause to the rule, we fit the rule to the cause. "Whoever deals with juristic questions," says Zitelmann, "must always at the same time be a bit of a legislator"9; that is, to a certain extent he must make law for the case before him.