The relaxation would not necessarily be as cataclys-mal as it might seem. There will always be a controlling influence by the abstract law, wherever a professional class fills the bench. This has been so from the time of the priest-judges of primitive times until to-day. Moreover, there is a large material furnished by common sense (common and undisputed, that is) and by common policies. Beyond this lies a field of questionable scope. And no doubt there is room for speculation as to the use of this field by the judges. Can they safely be turned loose into it? This is the problem of a "freie Rechtsfindung" and "libre recherche," the needs and dangers of which are discussed in this volume by the trenchant pens of Geny, Ehrlich, and other jurists.
Let us not minimize these dangers; let us merely not exaggerate them. And, for consolation in the prospect of them, let us recall at least two relevant circumstances:
(a) In the first place, our own Supreme Courts have long been drawing copiously and consciously from this unbounded field of public policy. The opinions are full of such discussions, and some of the greatest questions of the day have been settled with no more definite guidance and control. Examples taken at random are the decisions settling the law of illness caused without impact (nervous shock, "railway spine," etc.) where the known conditions of modern personal injury litigation have furnished the main grounds of judgment; the law of releases signed by patients in a hospital, where the apparently fixed principles of documentary execution have been subordinated to the policy applicable to such a situation; the law of privilege for torts in general, where modern conditions have at many points required sole reliance upon neither precedent nor statute. And this list might be indefinitely enlarged. An extension of this field of "libre recherche" would be no novelty in method.
(b) In the second place, the judge's liberty could in any event not exceed that of the legislators, whose liberty (and license) of reasoning we have long viewed (and suffered) with equanimity. Reflecting on the debate that occurs in a judiciary committee of the legislature, when an ordinary measure of private law is presented, what is the range of reasoning? What of the personal oddities, the maddening irrelevancies, the ignorant assumptions, the crude philosophies, the fragmentary conceptions, the narrow outlook, the obstinate bias, the stolid indifference to facts and needs? These legislators, in their motives and reasonings for a declaration of law, have a "libre recherche" indeed. But we have accepted it as a matter of course. Why not accept it for the judges also?
This part of the problem after all is not so troublesome, perhaps, as another part, viz. the necessity for drawing the line. A line must be drawn somewhere (by hypothesis) between the judiciary operation and the legislative operation, - so long, at least, as separate officials are maintained for the two general purposes. Now when a concrete case is presented to the judge, in what classes of cases should he refrain from "libre recherche," assuming that no statute is involved? How shall those classes be defined?
For example, if an action of nuisance were to be brought against a liquor-seller, but no statute be produced declaring liquor-selling to be illegal, might a court, if it entertained the conviction that liquor-selling was deleterious to the local welfare, and that this liquor-seller's business in particular was of that quality, declare such law and restrain the further conduct of that business? That particular topic has hitherto been deemed to be subject only to legislative declaration of law; and the policies pro and contra have formed public issues on which legislatures have been elected. We may suppose that any definition of the line between judiciary and legislative functions would desire to allot this topic to the latter. But what definition will dispose workably of that and like topics?
Here we get a glimpse of an important argument against the extension of "libre recherche"-free range of decision - for the judiciary. That body's function of doing Justice can best be performed in independence, free from the pressure of public clamor. If then we permit them to enter (more freely than now) the field of public policy, we subject them to the loss of that very independence which on other grounds we seek to secure for them. The legislature is the body that responds to momentary public opinion and registers the will of the majority. Do we wish another body to duplicate that function? Do we not need one body of justice-dispensers which shall be primarily concerned with the technical material of the law, and independently engaged in developing it? Does not the vital difference between judiciary and legislature lie in the fact that one should be responsive to popular opinion and the other should be independent of it? And, if so, can we guarantee this in any other way than by our traditional system?
There may indeed be a fallacy here, in these questions. For is it correct to assume that even the legislators ought to be responsive to current public opinion? Is that consistent with representative government? Should Demos be voiced directly on the legislative benches; or does not the best tradition of our forefathers demand rather that the legislator should be an independent thinker, expert in the subject for legislation, a guide, and not a mere messenger for the mass of the voters?
These questions disclose, at any rate, the complexity of the problem, and verge closely upon our next theme, -the Legislative Function.
J. H. W.