A large portion of the present volume is devoted to the discussion by divers authors of the question of what is termed "free judicial decision" or "freie Rechtsfindung," - namely, the deliverance of the administration of justice from undue submission to minute and rigid rules of law and the corresponding extension of the sphere of unrestricted judicial discretion. The question is one which has received but scant attention in English or American legal literature, but it is clear from the contents of this volume that it has been the subject of much consideration from European jurists and that it is one of grave practical importance in respect of all schemes of legal or judicial reform.
Law has been defined by many men in many different ways, and the diversity is largely due to the fact that a system of law is a complex phenomenon possessing different aspects from different points of view. From the point of view of the lawyer, however, whether he is concerned with practice or with theory, the law presents itself primarily and essentially as a system of rigid rules in accordance with which justice is administered in the tribunals of the State to the exclusion of the unrestricted judicial discretion of the judges and magistrates to whom this function is intrusted.
Theoretically the administration of justice is possible without the existence of a system of law at all. Courts of justice might in theory be left to do justice according to their own good pleasure, determining the right of each individual case according to the facts of that case and according to the untrammeled sense of natural equity. Certain courts of inferior jurisdiction do in fact possess by statute this power of adjudication in accordance with equity and good conscience without reference to rigid rules of law. A similar jurisdiction was in earlier days exercised by courts of equity. Nevertheless the general adoption of such a system of courts of justice which are not also courts of law is open to objections so grave that at all times and in all places it has been found necessary to limit or exclude judicial discretion by elaborate systems of fixed principles of law which courts are bound to follow in the exercise of their judicial functions. These rules have been either imposed upon the courts "ab extra" by the State in the form of statute law, or have been developed by the courts themselves in the form of judicial precedents which exclude for the future that freedom of judicial decision in which they had their origin. It is true that this system of administering justice according to law - legal justice instead of natural justice - has brought grave evils in its train. It is the source of the technicality and formalism, the complexity and esoteric mystery, which have at all times been made a ground of reproach against judicial administration. Nevertheless the good sense of all communities has at all times recognized that in spite of these grave evils the balance of advantage lies beyond question on the side of administering justice in obedience to a rigid and elaborate system of binding legal rules.
1 Solicitor-General for New Zealand.
Although there is no question, therefore, that in all civilized and advanced communities it is practically necessary that justice should be administered according to law and not according to the sense of equity and good conscience of its judicial administrators, there still remains the very important and practical question as to how much law is necessary: that is to say, as to the extent to which the exclusion of free judicial discretion by fixed predetermined principles of law is necessary and justifiable. How far should a legal system consist of a comparatively small number of general principles which, because of their generality, are necessarily flexible and leave scope for a large measure of judicial liberty in their administration; and how far, on the other hand, should a legal system seek by the multitude, minuteness, and fixity of its constituent rules to exclude so far as possible the liberty of judges and magistrates to do as they think just in the individual case?
There can be little doubt that English law and the systems derived from it have followed the latter of these courses to an extreme. In complexity, in minuteness, and in rigidity, these systems have in many departments of the law gone far beyond the ideal limits. This overgrowth of law is indeed scarcely avoidable in any system which grows by the internal secretion of case-law instead of by the external imposition of statute law. Statute law is almost necessarily more general, more free from minute and even irrational distinctions, qualifications, and exceptions, than the law which is developed piecemeal from precedents established by reference to the individual instance. If English law is ever codified, the most striking difference between the law in its new statutory form and the unwritten law of the present day will be an enormous reduction in its bulk and complexity and the wholesale elimination of the minute distinctions and exceptions by which it is now disfigured.
The case in favor of an elaborate and rigid legal system is far stronger in respect of substantive law than in respect of procedure. In modern times we have begun to recognize the extent to which, in all matters which relate to procedure, judicial discretion may wisely be left free from the trammels of law. Yet we have a long way to travel on this road before an ideal system is within our sight. In earlier days the diseased growth of procedural law was the chief reproach of the English system. The technicality and formalism of the older law of pleading and practice have indeed ceased to a large extent to deform and discredit the administration of justice, and will rightly be regarded by the future historians of the law as one of the most remarkable features of the dark ages of legal development. The elimination of legally essential but practically immaterial forms, the substitution of merely directory for mandatory rules, the establishment of wide powers of amendment, and other reforms, have largely restored to the courts the power of doing in matters of mere procedure such justice as seems good to them. Yet we are still far from being beyond reproach in this matter. It is difficult, for example, to view the complexities and technicalities of the modern law of evidence as having any rational justification or any place in a reasoned system of judicial administration. Surely if a court of justice is fit to be intrusted with the function of determining issues of fact, it is also fit to be trusted to hear and consider such evidence as in its unrestrained discretion it considers relevant to those issues. A system of rules of law for the admission or exclusion of evidence would surely in a rational system of judicial administration go its way to the same limbo to which the technicalities of the law of pleading have been already well committed. There is no other form of human inquiry in which the inquirer is not at liberty to seek guidance from any source which seems good and sufficient to him.