This logical impossibility of fixing thought by a word is of course most strikingly seen in these changes generated by time,-in the questions whether automobiles are "vehicles," under laws of sixty years ago requiring towns to maintain roads in good repair for vehicles; whether phonographic disks are "copies" of music entitled to protection under a statute enacted before the phonograph was imagined; and so on. But it is also inherent in enactments not affected by changes of time or place. The citizenship of a corporation under the Federal Judiciary Act; the scope of a workmen's compensation act defined as applying only to injuries received "in or about" the place of employment; the voidness of a bequest to a will witness who is a "beneficiary" under the will; these and a thousand other instances illustrate the truth.
But this is only the simplest form of the difficulties that arise from the inherent logical impossibility of controlling the judiciary by the words of a statute. For its more subtle aspect, and its more profound origin, the reader is referred to the masterly essay of Dr. Wurzel, on "Methods of Juridical Thinking," included in this volume.
3. A further great inquiry is How jar is the judge controlled by his own prior declarations?-the question of Judiciary Statification, of stare decisis.
Here one asks at the outset, Why should the judge be expected to follow his own prior declarations? And the immediate answer, of course, is: Because the inherent nature of Law as contrasted with non-law lies in its uniformity; and a fundamental postulate of our system is that Justice (the settlement of the individual's share of anything in life, when disputed by another individual) is to be sought through Law.
Reserving the right to ask whether uniformity as an element of Law (the abstract) necessarily involves uniformity as an element of Justice (the concrete), we may proceed to ask, What are the advantages attributable to uniformity? And here the answer generally conceded seems to be that three desired advantages are thus secured: viz. Equality, Stability, and Certainty. So that our question becomes: How far does stare decisis tend to secure equality, stability, and certainty?
(1) Equality is not a product for which stare decisis is necessary. Equality is something desired for the persons now under the law; it does not call for sameness of treatment between those of the present and those of the past or the future generation. Gompers need not receive equal law with Hampden or with the citizen of Utopia, provided he receives equal law with Harriman. Allowing, therefore, a short time before and after now as necessary for the consciousness of equality with our own generation, equality calls for no longer period of stare decisis.
(2) Stability is indeed a product of stare decisis; but the converse proposition, viz. that stare decisis is invariably necessary to stability, is not true, and yet this converse proposition is the one ordinarily implied. In so far as the faith of contracts is involved, and the security of property, there must be adherence to prior declarations of law in so far as such faith and such security have been rested upon them, but so far only. And does a change of rule in a new concrete case necessarily affect prior contracts and properties? If a Supreme Court to-day holds that a contract is formed by deposit of an acceptance in the mail box, changing from the rule that arrival of the acceptance forms the contract, may not this leave valid all relations effected before the promulgation of the decision? In other words, stability is wanted for the sake of the concrete relations of individuals, not for the sake of the abstraction; and the former can be preserved, by exception, without preserving the latter. The legislature makes no scruple of following this distinction; every volume of session laws contains statutes ending with the proviso that "this act shall take effect from January first, and shall not be applicable to any contract made or cause of action accrued prior to that date." Why could not the judicial doctrine of stare decisis be applied with the same restriction? It would be an interesting experiment.
(3) Certainty is the third supposed virtue of stare decisis. The theoretical value of certainty, and the best feasible method of securing it, are interesting questions. But it is difficult to reflect on this part of the question without emphasizing the pragmatic element. For the inquiry presses, How far indeed has certainty been secured by our practice? Would a less frequent invocation of stare decisis have given the community less certainty in justice? Is the degree of the present obvious lack of certainty due to other causes, or to the inherent impotency of stare decisis for that purpose? In countries like France, which started a century ago with the negation of that principle, but gradually came to recognize it to a degree, has there been adequate certainty?
And, if we look away from the community at large to the profession of law practitioners, how far may we suppose that the laudation of certainty has been due in part to mere mental convenience of the profession? Such a naive confession as that of Lord Ellenborough we do not often receive, but its significance is radical: "If this rule were to be changed, a lawyer who was well stored with these rules would be no better than any other man that is without them."
There is much more to this theme. But again it is a place where conventional assumptions must be challenged. And the essays in this volume supply that challenge.
4. And still another question remaining is, What can furnish the judge any other guide or control, superior to his own momentary and unformulated sense of justice? -the question of Judiciary Rectification.
The judge must be "rectified," we all assume. That is, in applying abstract Law to do concrete Justice, there must be some standard of guidance for him. We do not want the meaningless Justice of the traditional Arabian sheikh, - the justice of individual whim and momentary notion. If, then, he is not to be mechanically controlled by statute and by precedent, what shall be the substitute?