That is to say: If the legislative process were officially so organized that it worked perfectly, no occasion would arise for asking whether the judiciary could be freed from subordination to it. If the legislative body were to sit continuously, were to deliberate ail-wisely, and were to formulate correctly and consistently, the judiciary process could be left to operate in simple subordination, by merely applying the rules to concrete cases. For whenever an exception appeared to be needed, or a change to be desirable, there would be instant reference to the legislative body, and its all-wisdom would supply the needed rule or exception, properly framed.
But the legislative process never does work perfectly. The legislative officials sit intermittently, deliberate hastily and unwisely, and formulate inconsistently. Moreover, they do not in the traditional Anglo-American State (nor in many others of history) legislate comprehensively on all topics, but only on some of the topics. Under such circumstances, then, should the legislative formulations be accorded a supreme domination? To accord such supremacy if the process even purported to work perfectly would be conceivable.
But to accord it when the process is so imperfectly organized seems absurd,-one of the absurdest things that history ever allowed to occur. To vest with absolute steel-bound rigidity a system so irregular and limping in its machinery is as curious a notion as to send a steamship to sea with only half of its machinery put together.
From this point of view, therefore, it is entirely proper to raise the question whether the officials vested with the judicial process must not inherently be given some independence of the legislative declaration, i.e. the statute. And Anglo-American history illustrates copiously how the judiciary have in fact occupied themselves at all times with declarations of law independent of statute, i.e. with genuine legislation. That they have done so is now seen to be nothing but an inevitable consequence of the imperfect organization of the legislative process in separate hands.
There is here, to be sure, a special question whether the judiciary should not be purely subordinate to the legislative declaration at least in those parts of the field of law that have been expressly covered by the latter. But even here, in view of the imperfect legislative machinery, the question is a fair one to raise whether the intellectual weight of the legislative sanction deserves such rigid supremacy. Here, as elsewhere, what has given it that supremacy, historically, has been its political (not its intellectual) weight; i.e. when the dominant public demand has expressed itself through the legislature, all officials must yield to it, -not because it is intrinsically meritorious, but because it represents the demands of actual power.
But such express demands of actual dominant sentiment are not usual. The mass of legislation in modern times represents merely the views of thirty or forty members of a judiciary committee of the legislature, on multifold details totally unknown to public sentiment. Should such legislative declarations have sacrosanct dominance over the judiciary?
Incidentally, at this point, as well as later, arises the question, Can we trust the judiciary with such a freedom? Must we not bind them by statute? Should we be safe otherwise, in view of the judicial personnel as it is composed in our time and place? No doubt this is a question whose answer may vary at different epochs and in different countries. Evidently the Roman praetor, for example, was trusted more than our modern judges are trusted. But enough here at this point, where the question is merely between judiciary and legislature, to insist that this question for us is not merely whether we could trust the judges, but whether we would rather trust the judges than the legislators. If it is to be a mere question how a dominant declaration of this or that rule of law will be most safely formulated, will the ordinary judiciary committee of a legislature be more safely trusted than the ordinary bench of supreme judges? If we are to attribute a sacrosanct domination to some official declaration of law, we must frankly face the facts of present practice, and not proceed upon some imaginary and theoretical state of facts. As laws are to-day actually made, what is the special guaranty of supreme wisdom furnished by the usual operations of a judiciary committee of the legislature?
Such are some of the considerations that arise under our first general question, that of Judiciary Subordination.
2. Even if the judge is subordinate, where does the control of the statute stop, leaving him free beyond that point?- the question of Judiciary Interpretation.
This question has so many angles of approach that one must be content to note only a few of them.
(1) In the first place, where ought the statute to stop? Should it descend into details, or should it remain in abstractions as much as possible? Should it be satisfied to proclaim "Thou shalt not steal!"; or may it well attempt to describe and prohibit multifarious varieties of stealing?
This, of course, is not strictly involved in the present question, but concerns rather the Legislative Function (post, p. xliii). Suffice it here to lament that our legislative traditions have never evolved a method, such as the French have evolved, of debating great questions "en principe," as they say. Our own more practical tradition, that of debating the fundamental principles only when presented as an issue of textual detail, has rendered a great service by dispelling obscurity of views and by forcing practical issues. But the over-emphasis of it has lost a valuable feature of wise legislation. For example, in the debates of the National Conference on Workmen's Compensation Laws, in 1910, much was gained, in time and clarity, by framing one of the issues thus: "Shall the law be optional or compulsory for employers?" By this means, the textual details were removed from needless dissension until the main issue had been settled.