The knowing what is just and what unjust, men think no great instance of wisdom, because it is not hard to understand those things of which the laws speak. They forget that these are not just acts except accidentally. To be just, they must be done and distributed in a certain manner. And this is a more difficult task than knowing what things are wholesome. For in this branch of knowledge it is an easy matter to know honey, wine, hellebore, cautery, or the use of the knife; but the knowing how one should administer these with a view to health, and to whom, and at what time, amounts in fact to being a physician.
Aristotle, Nicomachean Ethics, v, 9, 1137a.
An interesting circumstance, which explains in part the difficulty of the problem in its practical aspect, is the contrast between the personal element in history and the jural element in theory. The theoretical purity of the problem is and always has been disturbed by the factional status quo of politics. When we find the Roman praetor deciding particular causes and also issuing general edicts, we realize that the course of Roman politics, in the struggle for power between consuls, tribunes, comitial assemblies, and senate, had resulted for the time in a pragmatic adjustment which left in the praetor's hands a portion of both functions, legislative and judicial. So, too, in France, the devious path by which the royal power became paramount in all fields under Louis XIV left the provincial Parlements in the possession of a limited portion of both functions; the recipe for the mixture being very different from that of the praetors. And again, in our own history, even after Montesquieu's triple distinction had come into common vogue theoretically, the traditions of the colonial legislatures and the alignments of local politics sometimes found the early state legislatures indisposed to observe the distinction; as, for instance, in Rhode Island, where "originally the General Assembly seems to have considered itself a court as well as a legislature,"1 and this attitude was not abandoned until after the decis-sion of Taylor v. Place, in 18562; for in this community the actual personnel of the Legislature, moved by local partisan strife, was evidently ready to exercise the judicial function. And, still more notably, the success of Marshall in vesting the federal judiciary with the revision of legislative statutes on constitutional grounds, and thus in preserving a legislative veto for the judiciary, was an expression of the deeper struggle between two political parties holding antagonistic convictions in the broader field of general politics.3
Thus, we see, the actual allotment of the detailed portions of the legislative and judicial functions varies at a given time and place, according to the then state of equilibrium of political interests; which in turn involves personnel, traditions, and other independent considerations. In short, the actual solution of the problem is and always has been complicated by historical and personal issues. In pure theory it is never presented.
None the less, it is possible and necessary to treat it as a question of theory, and to inquire into its general elements, common to all times and places.
There seem to be at least four distinct and large questions involved.
1 Quoted by Chief Justice Durfee from Justice Stiness in his essay on Samuel Ames (Lewis' "Great American Lawyers," v, 301). 2 4 R. I. 324.
3Marshall was "by far the most popular Federalist in Virginia, perhaps in the United States" (W. D. Lewis' "Great American Lawyers," ii, 337).
1. Is it inherently necessary that the judge should be subordinate to the statute? Let us call this, for short, the question of Judiciary Subordination.
2. Even if he is, where does the control of the statute stop, leaving him free beyond that point? Let us call this the question of Judiciary Interpretation.
3. So far as he is free, how far is he controlled by his own prior declarations? Let us call this the question of Judiciary Statification.
4. And, so far as he is not so controlled, what does furnish him any other guide or control, superior to his own momentary and unformulated sense of justice? This we may call the question of Judiciary Rectification.
Let us look a moment at the first question:
1. Is it inherently necessary that the judge should be subordinate to the statute? - the question of Judiciary Subordination.
To get the proper point of view, we must here make some assumption as to the use of terms, i.e., the distinction of ideas implied in "judicial" and "legislative". There certainly are two distinct processes.
One is the process of (1) formulating a rule in more or less general terms, (2) because of certain policies deliberately deemed to be controlling; i.e. (1) formulation (2) to effect a felt purpose. This we may assume to be the essence of what we usually call "legislation."
The other process is that of deciding, by an agent of state power, a controversy existing between two individuals (or the State and an individual), by rational (not merely personal) considerations, purporting to rest on justice and law (i.e. the community's general sense of order).
Now these two processes might conceivably be performed by the same person or group, and have often been so performed, in variant shares or allotments, and the first inquiry that arises is whether they ought to be so merged, in any degree. But, for the purpose of theory, we may now assume that this question has been settled; and that it has been settled on historic and political grounds, by allotting, provisionally and primarily, the whole of the one process to one person or group of officials, and the whole of the other to another person or group. And we may ignore for the moment the logical difficulty to be mentioned under the next head (due to the inherent abstractness of legislation). We shall then come to the question: Does it work?