Yet it is held pretty generally, at the present time, that the individual sense of justice is an inadmissible and unprofitable factor in the administration of law. Sense of justice is identified with arbitrary will, and it is denied more or less emphatically that this can become the proper basis for a judicial decision.
To deny the existence of a subjective or individual sense of justice would be to contradict all experience. Such a sentiment exists as certainly as does conscience, with which it is allied by many essential features. Long ago the Romans knew that this feeling may be increased and strengthened by practice and training. That is why they spoke of "constans et perpetua voluntas jus suum cuique tribuendi." How absurd, however, to eliminate this feeling from the very place where it is especially fitted to exercise its function! Of all places, from the heart of the judge whose calling makes it his duty to cultivate and develop this feeling in himself! Do not all men in ordinary life draw their conclusions as to what is just from this inborn sentiment in a million cases which are never submitted to a court and which form by far the greater portion of the facts to which law and justice is applied? Does a well-disposed layman, in attending to his affairs, ever consult anything but his experience, his common sense and his conscience, which we all know speaks in plain language to him who stands at the parting of the ways?"113 Yet will it be said that as a matter of principle the judge is obliged to act differently, the judge, whose business it is, as Klein says, to tell the parties what they ought to have done before they came into court?114 Is there really an insuperable barrier between doing business under the law and the rendering of judgment on the law? Can it be that the function of the judge is not to regulate the working of the law in actual life according to the nature of legal life, but to impose upon such legal life something alien to it, discovered in the statute by means of speculation and abstract argumentation? Are not the laws supposed to be merely the formal expression of the manner in which economic and social intercourse is reasonably carried on? Was there not bartering and selling before there were statutes prescribing what duties were to grow out of such transactions for the participants?115 Was Zeppelin to defer the conquest of the air until aerial traffic had been regulated in neat little rules and sections?116 Where is the judge to find decisions for conflicts arising out of relations not regulated by statutes, if not in natural equity in the light of a fair balancing of the interests involved?117 And how are you going to eliminate the wrong in principle, we shall have to maintain that in Germany there are two ways of rendering justice, one of which is utterly irreconcilable with the other.
111 "G" 84.
112 "G" 188, 189.
113 Comp. "G" 11.
115 Comp. the excellent passage in the report ("Motive") on the bill to regulate the relations between authors and publishers (Act of June 19, 1901), where Danz says (p. 24) that the bill did not intend to create new law but merely to recognize and affirm the practice already prevailing. That is the true type of the growth of law.
116 "G" 58.
117 It is true, however, that equity must be distinguished from subjective sense of justice in so far as it represents the general sense of what is just. This has led Schmolder ("Die Billigkeit," p. 35) to treat equity as natural sense of justice where the statute expressly refers to it, as it does when it speaks of "weighty reasons," "good morals," or "good faith"? What blindness, to demand of the judge that he forget his subjective sense of justice! No, indeed! Unless one is ready to involve himself in absolutely monstrous and insupportable inconsistencies, he will have to recognize that the court must as far as possible declare the law to be as people would naturally do in their daily intercourse; in other words, he must call to his aid the subjective sense of justice. There is another reason why this should be so. This manner of finding the law, which appears so strange to the learned judges, is already applied to a very considerable extent in the lay courts recognized by law. As a matter of fact a lay court is quite sure always to ask itself first, what would be done in any given case by a sensible person called in to act as a peacemaker trying to be fair to both sides; after that it will consider whether the statute will permit them to render a decision accordingly. In the commercial courts, where I have experience, the presiding judge will hardly do otherwise if he means to convince the lay assessors of the correctness of the decision. If it is claimed that the administration of law as thus carried on in the lay courts is synonymous with popular sense of justice. Afterwards, however, he recognizes expressly (p. 56) that equity substitutes the "pleasure" ("placitum") of the individual judge for formulated rules. Hence must follow that a certain degree of subjective discretion on the part of the judge must be conceded if equity is to remain a factor in the administration of justice. For without such discretion one could not know what is equitable. To eliminate equity from the "ars boni et aequi" is simply unthinkable. In discussing the subjective discretion of the judge we must not forget that his knowledge of the whole body of law and the interdependence of its parts (say, e.g., with regard to the utility of prescribed formalities and the necessity of enforcing them) will so vitally affect his original sense of justice that a new and peculiar condition of his mind is the result. Of this condition the judge could not rid himself in any particular case, even if he wished to do so, any more than a medical expert, in testifying, could eliminate his knowledge of medicine.