THE NATURE OF THE JUDICIAL PROCESS
Lecture I.
Introduction.
The Method of Philosophy.
THE work of deciding cases goes on every day in hundreds of courts throughout
the land. Any judge, one might suppose, would find it easy to describe
the process which he had followed a thousand times and more. Nothing could
be farther from the truth. Let some intelligent layman ask him to explain:
he will not go very far before taking refuge in the excuse that the language
of craftsmen is unintelligible to those untutored in the craft. Such an
excuse may cover with a semblance of respectability an otherwise ignominious
retreat. It will hardly serve to still the pricks of curiosity and conscience.
In moments of introspection, when there
[9]
is no longer a necessity of putting off with a show of wisdom the uninitiated
interlocutor, the troublesome problem will recur, and press for a solution.
What is it that I do when I decide a case? To what sources of information
do I appeal for guidance? In what proportions do I permit them to contribute
to the result? In what proportions ought they to contribute? If a precedent
is applicable, when do I refuse to follow it? If no precedent is applicable,
how do I reach the rule that will make a precedent for the future? If I
am seeking logical consistency, the symmetry of the legal structure, how
far shall I seek it? At what point shall the quest be halted by some discrepant
custom, by some consideration of the social welfare, by my own or the common
standards of justice and morals? Into that strange compound which is brewed
daily in the caldron of the courts, all these ingredients enter in varying
proportions. I am not concerned to inquire whether judges ought to be allowed
to brew such a compound at all. I take judge-made law as one of the existing
realities of life. There, before us,
[10]
is the brew. Not a judge on the bench but has had a hand in the making.
The elements have not come together by chance. Some principle however unavowed
and inarticulate and subconcious, has regulated the infusion. It may not
have been the same principle for all judges at any time, nor the same principle
for any judge at all times. But a choice there has been, not a submission
to the decree of Fate; and the considerations and motives determining the
choice, even if often obscure, do not utterly resist analysis. In such
attempt at analysis as I shall make, there will be need to distinguish
between the conscious and the subconscious. I do not mean that even those
considerations and motives which I shall class under the first head are
always in consciousness distinctly, so that they will be recognized and
named at sight. Not infrequently they hover near the surface. They may,
however, with comparative readiness be isolated and tagged, and when thus
labeled are quickly acknowledged as guiding principles of conduct. More
subtle are the forces so far beneath the
[11]
surface that they cannot reasonably be classified as other than subconscious.
It is often through these subconscious forces that judges are kept consistent
with themselves, and inconsistent with one another. We are reminded by
William James in a telling page of his lectures on Pragmatism that every
one of us has in truth an underlying philosophy of life, even those of
us to whom the names and the notions of philosophy are unknown or anathema.
There is in each of us a stream of tendency, whether you choose to call
it philosophy or not,1 which gives coherence
and direction to thought and action. Judges cannot escape that current
any more than other mortals. All their lives, forces which they do not
recognize and cannot name, have been tugging at them--inherited instincts,
traditional beliefs, acquired convictions; and the resultant is an outlook
on life, a conception of social needs, a sense in James's phrase of "the
total push and pressure of the cosmos," which, when reasons are nicely
balanced, must determine where choice shall fall.
[12]
In this mental background every problem finds its setting. We may try
to see things as objectively as we please. None the less, we can never
see them with any eyes except our own. To that test they are all brought—-a
form of pleading or an act of parliament, the wrongs of paupers or the
rights of princes, a village ordinance or a nation's charter.
I have little hope that I shall be able to state the formula which will
rationalize this process for myself, much less for others. We must apply
to the study of judge-made law that method of quantitative analysis which
Mr. Wallas has applied with such fine results to the study of politics.2
A richer scholarship than mine is requisite to do the work aright. But
until that scholarship is found and enlists itself in the task, there may
be a passing interest in an attempt to uncover the nature of the process
by one who is himself an active agent, day by day, in keeping the process
alive. That must be my apology for these introspective searchings of the
spirit.
[13]
Before we can determine the proportions of a blend, we must know the
ingredients to be blended. Our first inquiry should therefore be: Where
does the judge find the law which he embodies in his judgment? There are
times when the source is obvious. The rule that fits the case may be supplied
by the constitution or by statute. If that is so, the judge looks no farther.
The correspondence ascertained, his duty is to obey. The constitution overrides
a statute, but a statute, if consistent with the constitution, overrides
the law of judges. In this sense, judge-made law is secondary and subordinate
to the law that is made by legislators. It is true that codes and statutes
do not render the judge superfluous, nor his work perfunctory and mechanical.
There are gaps to be filled. There are doubts and ambiguities to be cleared.
There are hardships and wrongs to be mitigated if not avoided. Interpretation
is often spoken of as if it were nothing but the search and the discovery
of a meaning which, however obscure and latent, had none the less a real
and ascertainable pre-existence in
[14]
the legislator's mind. The process is, indeed, that at times , but
it is often something more. The ascertainment of intention may be the least
of a judge's troubles in ascribing meaning to a statute. "The fact is,"
says Gray in his lectures on the "Nature and Sources of the Law,"3
"that the difficulties of so-called interpretation arise when the legislature
has had no meaning at all; when the question which is raised on the statute
never occurred to it; when what the judges have to do is, not to determine
what the legislature did mean on a point which was present to its mind,
but to guess what it would have intended on a point not present to its
mind, if the point had been present."4
So Brütt:5 "One
weighty task of the system of the application of law consists then in this,
to make more profound the discovery of the latent meaning of positive law.
Much more important, however, is the second task which the system serves,
namely
[15]
the filling of the gaps which are found in every positive law in greater
or less measure." You may call this process legislation, if you will. In
any event, no system of jus scriptum has been able to escape the
need of it. Today a great school of continental jurists is pleading for
a still wider freedom of adaptation and construction. The statute, they
say, is often fragmentary and ill-considered and unjust. The judge as the
interpreter for the community of its sense of law and order must supply
omissions, correct uncertainties, and harmonize results with justice through
a method of free decision—"libre recherche scientifique." That is the view
of Gény and Ehrlich and Gmelin and others.6
Courts are to "search for light among the social elements of every kind
that are the living force behind the facts they deal with."7 The power
thus put in their hands is great, and subject, like all power, to abuse;
but we are not to flinch from granting it. In the long run "there is no
guaranty of
[16]
justice," says Ehrlich,8 "except the personality
of the judge."9 The same problems of method, the same contrasts between
the letter and the spirit, are living problems in our own land and law.
Above all in the field of constitutional law, the method of free decision
has become, I think, the dominant one today. The great generalities of
the constitution have a content and a significance that vary from age to
age. The method of free decision sees through the transitory particulars
and reaches what is permanent behind them. Interpretation, thus enlarged,
becomes more than the ascertainment of the meaning and intent of lawmakers
whose collective will has been declared. It supplements the declaration,
and fills the vacant spaces, by the same processes and methods that have
built up the customary law. Codes and other statutes may
[17]
threaten the judicial function with repression
and disuse and atrophy. The function flourishes and persists by virtue
of the human need to which it steadfastly responds. Justinian's prohibition
of any commentary on the product of his codifiers is remembered only for
its futility.10
I will dwell no further for the moment upon the significance
of constitution and statute as sources of the law. The work of a judge
in interpreting and developing them has indeed its problems and its difficulties,
but they are problems and difficulties not different in kind or measure
from those besetting him in other fields. I think they can be better studied
when those fields have been explored. Sometimes the rule of constitution
or of statute is clear, and then the difficulties vanish. Even when they
are present, they lack at times some of that element of mystery which accompanies
creative energy. We reach the land of mystery when constitution and statute
are silent, and the judge must look to
[18]
the common
law for the rule that fits the case. He is the "living oracle of the law"
in Blackstone's vivid phrase. Looking at Sir Oracle in action, viewing
his work in the dry light of realism, how does he set about his task?
The
first thing he does is to compare the case before him with the precedents,
whether stored in his mind or hidden in the books. I do not mean that precedents
are ultimate sources of the law, supplying the sole equipment that is needed
for the legal armory, the sole tools, to borrow Maitland's phrase,11
"in the legal smithy." Back of precedents are the basic juridical conceptions
which are the postulates of judicial reasoning, and farther back are the
habits of life, the institutions of society, in which those conceptions
had their origin, and which, by a process of interaction, they have modified
in turn.,12 None the less, in a system so highly developed as our
[19]
own, precedents have so covered the
ground that they fix the point of departure from which the labor of the
judge begins. Almost invariably, his first step is to examine and compare
them. If they are plain and to the point, there may be need of nothing
more. Stare decisis is at least the everyday working rule of our law. I
shall have something to say later about the propriety of relaxing the
rule in exceptional conditions. But unless those conditions are present,
the work of deciding cases in accordance with precedents that plainly fit
them is a process similar in its nature to that of deciding cases in accordance
with a statute. It is a process of search, comparison, and little more.
Some judges seldom get beyond that process in any case. Their notion of
their duty is to match the colors of the case at hand against the colors
of many sample cases spread out upon their desk. The sample nearest in
shade supplies the applicable rule. But, of course, no system of living
law can be evolved by such a process, and no judge of a high court, worthy
of his office, views the function of his place so narrowly. If
[20]
that
were all there was to our calling, there would be little of intellectual
interest about it. The man who had the best card index of the cases would
also be the wisest judge. It is when the colors do not match, when the
references in the index fail, when there is no decisive precedent, that
the serious business of the judge begins. He must then fashion law for
the litigants before him. In fashioning it for them, he will be fashioning
it for others. The classic statement is Bacon's: "For many times, the things
deduced to judgment may be meum and tuum, when the reason and consequence
thereof may trench to point of estate."13 The sentence of today will make
the right and wrong of tomorrow. If the judge is to pronounce it wisely,
some principles of selection there must be to guide him among all the potential
judgments that compete for recognition.
In the life of the mind as in life
elsewhere, there is a tendency toward the reproduction of kind. Every judgment
has a generative power. It begets in its own image. Every precedent, in
[21]
the words of Redlich, has a
"directive force for future cases of the same or similar nature."14 Until
the sentence was pronounced, it was as yet in equilibrium. Its form and
content were uncertain. Any one of many principles might lay hold of it
and shape it. Once declared, it is a new stock of descent. It is charged
with vital power. It is the source from which new principles or norms may
spring to shape sentences thereafter. If we seek the psychological basis
of this tendency, we shall find it, I suppose, in habit.15 Whatever its
psychological basis, it is one of the living forces of our law. Not all
the progeny of principles begotten of a judgment survive, however, to maturity.
Those that cannot prove their worth and strength by the test of experience
are sacrificed mercilessly and thrown into the void. The common law does
not work from pre-established truths of universal and inflexible validity
to conclusions derived from them
[22]
deductively. Its method is inductive, and it draws
its generalizations from particulars. The process has been admirably stated
by Munroe Smith: "In their effort to give to the social sense of justice
articulate expression in rules and in principles, the method of the lawfinding
experts has always been experimental. The rules and principles of case law have never
been treated as final truths, but as working hypotheses,continually retested
in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result
which is felt to be unjust, the rule is reconsidered. It may not be modified
at once, for the attempt to do absolute justice in every single case would
make the development and maintenance of general rules impossible; but if
a rule continues to work injustice, it will eventual]y be reformulated.
The principles themselves are continually retested; for if the rules derived
from a principle do not work well, the principle itself must ultimately
be re-examined."16
[23]
The way in which this process of retesting and reformulating works may
be followed in an example. Fifty years ago, I think it would have been
stated as a general principle that A. may conduct his business as he pleases,
even though the purpose is to cause loss to B., unless the act involves
the creation of a nuisance.l7 Spite fences were the stock illustration,
and the exemption from liability in such circumstances was supposed to
illustrate not the exception, but the rule.18 Such a rule may have been
an adequate working principle to regulate the relations between individuals
or classes in a simple or homogeneous community. With the growing complexity
of social relations, its inadequacy was revealed. As particular controversies
multiplied and the attempt was made to test them by the
[24]
old principle, it was found that there was something wrong in the results, and this led to a reformulation of the principle
itself. Today, most judges are inclined to say that what was once thought
to be the exception is the rule, and what was the rule is the exception.
A. may never do anything in his business for the purpose of injuring another
without reasonable and just excuse.19 There has been a new generalization
which, applied to new particulars, yields results more in harmony with
past particulars, and, what is still more important, more consistent with
the social welfare. This work of modification is gradual. It goes on inch
by inch. Its effects must be measured by decades and even centuries. Thus
measured, they are seen to have behind them the power and the pressure
of the moving glacier.
We are not likely to underrate the force that has
been exerted if we look back upon its work. "There is not a creed which
is not shaken, not an accredited dogma which is not shown to be
[25]
questionable, not a received tradition
which does not threaten to dissolve.20 Those are the words of a critic
of life and letters writing forty years ago, and watching the growing scepticism
of his day. I am tempted to apply his words to the history of the law.
Hardly a rule of today but may be matched by its opposite of yesterday.
Absolute liability for one's acts is today the exception; there must commonly
be some tinge of fault, whether willful or negligent. Time was, however,
when absolute liability was the rule.21 Occasional reversions to the earlier
type may be found in recent legislation.23 Rights of action
may be assigned, and the buyer prosecute them to judgment though he bought
for purposes of suit. Time was when the assignment was impossible, and
the maintenance of the suit a crime. It is no basis today for an action
of deceit to show, without more, that there has been the breach of an executory
promise; yet the breach of an executory promise came to have a remedy in
our law because it was held to be a deceit.24 These changes or most of them
have been wrought by judges. The men who wrought them used the same tools
as the judges of today. The changes, as they were made in this case or
that, may not have seemed momentous in the making. The result, however,
when the process was prolonged throughout the years, has been not merely
to supplement or modify; it has been to revolutionize
27
and transform.
For every tendency, one seems to see a counter-tendency; for every rule
its antinomy. Nothing is stable. Nothing absolute. All is fluid and changeable.
There is an endless "becoming." We are back with Heraclitus. That, I mean,
is the average or aggregate impression which the picture leaves upon the
mind. Doubtless in the last three centuries, some lines, once wavering,
have become rigid. We leave more to legislatures today, and less perhaps
to judges.25 Yet even now there is change from decade to decade. The glacier
still moves.
In this perpetual flux, the problem which confronts the judge is
in reality a twofold one: he must first extract from the precedent the
underlying principle, the ratio decidendi; he must then determine the path or direction
along which the principle is to move and develop, if it is not to wither
and die.
The first branch of the problem is the one to which we are accustomed
to address ourselves
[28]
more consciously than
to the other. Cases do not unfold their principles for the asking. They
yield up their kernel slowly and painfully. The instance cannot lead to
a generalization till we know it as it is. That in itself is no easy task.
For the thing adjudged comes to us oftentimes swathed in obscuring dicta,
which must be stripped off and cast aside. Judges differ greatly in their
reverence for the illustrations and comments and side-remarks of their
predecessors, to make no mention of their own. All agree that there may
be dissent when the opinion is filed. Some would seem to hold that there
must be none a moment thereafter. Plenary inspiration has then descended
upon the work of the majority. No one, of course, avows such a belief,
and yet sometimes there is an approach to it in conduct. I own that it
is a good deal of a mystery to me how judges, of all persons in the world,
should put their faith in dicta. A brief experience on the bench was enough
to reveal to me all sorts of cracks and crevices and loopholes in my own
opinions when picked up a few months after delivery,
[30]
and reread with
due contrition. The persuasion that one's own infallibility is a myth leads
by easy stages and with somewhat greater satisfaction to a refusal to ascribe
infallibility to others. But dicta are not always ticketed as such, and
one does not recognize them always at a glance. There is the constant need,
as every law student knows, to separate the accidental and the non-essential
from the essential and inherent. Let us assume, however, that this task
has been achieved, and that the precedent is known as it really is. Let
us assume too that the principle, latent within it, has been skillfully
extracted and accurately stated. Only half or less than half of the work
has yet been done. The problem remains to fix the bounds and the tendencies
of development and growth, to set the directive force in motion along the
right path at the parting of the ways.
The directive force of a principle
may be exerted along the line of logical progression; this I will call
the rule of analogy or the method of philosophy; along the line of historical
development;
[30]
this I will call the method of evolution; along the line
of the customs of the community; this I will call the method of tradition;
along the lines of justice, morals and social welfare, the mores of the
day; and this I will call the method of sociology.
I have put first among
the principles of selection to guide our choice of paths, the rule of analogy
or the method of philosophy. In putting it first, I do not mean to rate
it as most important. On the contrary, it is often sacrificed to others.
I have put it first because it has, I think, a certain presumption in its
favor. Given a ass of particulars, a congeries of judgments on related
topics, the principle that unifies and rationalizes them has a tendency,
and a legitimate one, to project and extend itself to new cases within
the limits of its capacity to unify and rationalize. It has the primacy
that comes from natural and orderly and logical succession. Homage is due
to it over every competing principle that is unable by appeal to history
or tradition or policy or justice to make out a
[31]
better right. All
sorts of deflecting forces may appear to contest its sway and absorb its
power. At least, it is the heir presumptive. A pretender to the title will
have to fight his way.
Great judges have sometimes spoken as if the principle
of philosophy, i.e., of logical development, meant little or nothing in
our law. Probably none of them in conduct was ever true to such a faith.
Lord Halsbury said in Quinn v. Leathem, 1901 A. C. 495, 506: "A case is
only an authority for what it actually decides. I entirely deny that it
can be quoted for a proposition that may seem to follow logically from
it. Such a mode of reasoning assumes that the law is necessarily a logical
code, whereas every lawyer must acknowledge that the law is not always
logical at all."26 All this may be true, but we must not press the truth
too far. Logical consistency does not cease to be a good because it is
not the supreme good. Holmes has told us
[32]
in a sentence which
is now classic that "the life of the law has not been logic; it has been
experience."27 But Holmes did not tell us that logic is to be ignored
when experience is silent. I am not to mar the symmetry of the legal structure
by the introduction of inconsistencies and irrelevancies and artificial
exceptions unless for some sufficient reason, which will commonly be some
consideration of history or custom or policy or justice. Lacking such a
reason, I must be logical, just as I must be impartial, and upon like grounds.
It will not do to decide the same question one way between one set of litigants
and the opposite way between another. "If a group of cases involves the
same point, the parties expect the same decision. It would be a gross injustice
to decide alternate cases on opposite principles. If a case was decided
against me yesterday when I was defendant, I shall look for the same judgment
today if I am plaintiff. To decide differently would raise a feeling of
resentment and wrong in my breast; it would be an
[33]
infringement, material and moral, of my rights."28 Everyone
feels the force of this sentiment when two cases are the same. Adherence
to precedent must then be the rule rather than the exception if litigants
are to have faith in the even-handed adminisration of justice in the
courts. A sentiment like in kind, though different in degree is at the
root of the tendency of precedent to extend itself along the lines of
logical development.29 No doubt the sentiment is powerfully reinforced
by what is often nothing but an intellectual passion for elegantia
juris, for symmetry of form and substance.30 That is an ideal which
can never fail to exert some measure of attraction upon the professional
experts who make up the lawyer class. To the Roman lawyers, it meant much,
more than it has meant to English lawyers or to ours, certainly more [34]
than it has
meant to clients. "The client," says Miller in his "Data of Jurisprudence,"31
"cares little for a 'beautiful' case! He wishes it settled somehow on the
most favorable terms he can obtain." Even that is not always true. But
as a system of case law develops, the sordid controversies of litigants
are the stuff out of which great and shining truths will ultimately be
shaped. The accidental and the transitory will yield the essential and
the permanent. The judge who moulds the law by the method of philosophy
may be satisfying an intellectual craving for symmetry of form and substance.
But he is doing something more. He is keeping the law true in its response
to a deep-seated and imperious sentiment. Only experts perhaps may be able
to gauge the quality of his work and appraise its significance. But their
judgment, the judgment of the lawyer class, will spread to others, and
tinge the common consciousness and the common faith. In default of other
tests, the method of philosophy must remain the organon of the courts if
[35]
chance and favor are to be excluded, and the affairs of men
are to be governed with the serene and impartial uniformity which is of
the essence of the idea of law.
You will say that there is an intolerable
vagueness in all this. If the method of philosophy is to be employed in
the absence of a better one, some test of comparative fitness should be
furnished. I hope, before I have ended, to sketch, though only in the broadest
outline, the fundamental considerations by which the choice of methods
should be governed. In the nature of things they can never be catalogued
with precision. Much must be left to that deftness in the use of tools
which the practice of an art develops. A few hints, a few suggestions,
the rest must be trusted to the feeling of the artist. But for the moment,
I am satisfied to establish the method of philosophy as one organon among
several, leaving the choice of one or the other to be talked of later.
Very likely I have labored unduly to establish its title to a place so
modest. Above all, in the Law School of Yale University, the
[36]
title will
not be challenged. I say that because in the work of a brilliant teacher
of this school, the late Wesley Newcomb Hohfeld, I find impressive recognition
of the importance of this method, when kept within due limits, and some
of the happiest illustrations of its legitimate employment. His treatise
on "Fundamental Conceptions Applied in Judicial Reasoning" is in reality
a plea that fundamental conceptions be analyzed more clearly, and their
philosophical implications, their logical conclusions, developed more
consistently. I do not mean to represent him as holding to the view that
logical conclusions must always follow the conceptions developed by analysis.
"No one saw more clearly than he that while the analytical matter is an
indispensable tool, it is not an all-sufficient one for the lawyer."32
"He emphasized over and over again" that "analytical work merely paves
the way for other branches of jurisprudence, and that without the aid
of the latter, satisfactory solutions of
[37]
legal problems cannot be reached"33 We must
know where logic and philosophy lead even though we may determine to abandon
them for other guides. The times will be many when we can do no better
than follow where they point.
Example, if not better than precept, may
at least prove to be easier. We may get some sense of the class of questions
to which a method is adapted when we have studied the class of questions
to which it has been applied. Let me give some haphazard illustrations
of conclusions adopted by our law through the development of legal conceptions
to logical conclusions. A. agrees to sell a chattel to B. Before title
passes, the chattel is destroyed. The loss falls on the seller who has
sued at law for the price.34 A. agrees to sell a house and lot. Before
title passes, the house is destroyed. The seller sues in equity for specific
performance. The loss falls upon the
[38]
buyer.35 That is probably
the prevailing view, though its wisdom has been sharply criticized.36
These variant conclusions are not dictated by variant considerations of
policy or justice. They are projections of a principle to its logical outcome,
or the outcome supposed to be logical. Equity treats that as done which
ought to be done. Contracts for the sale of land, unlike most contracts
for the sale of chattels, are within the jurisdiction of equity. The vendee
is in equity the owner from the beginning. Therefore, the burdens as well
as the benefits of ownership shall be his. Let me take as another illustration
of my meaning the cases which define the rights of assignees of choses
in action. In the discussion of these cases, you will find much conflict
of opinion about fundamental conceptions. Some tell us that the assignee
has a legal ownership.37 Others say that his right is purely equitable."38
[39]
Given, however, the fundamental conception,
all agree in deducing its consequences by methods in which the preponderating
element is the method of philosophy. We may find kindred illustrations
in the law of trusts and contracts and in many other fields. It would be
wearisome to accumulate them.
The directive force of logic does not always
exert itself, however, along a single and unobstructed path. One principle
or precedent, pushed to the limit of its logic, may point to one conclusion;
another principle or precedent, followed with like logic, may point with
equal certainty to another. In this conflict, we must choose between the
two paths, selecting one or other, or perhaps striking out upon a third,
which will be the resultant of the two forces in combination, or will represent
the mean between extremes. Let me take as an illustration of such conflict
the famous case of Riggs v. Palmer, 115 N. Y. 506. That case decided that
a legatee who had murdered his testator would not be permitted by a court
of equity to enjoy the benefits of the will. Conflicting
[40]
principles
were there in competition for the mastery. One of them prevailed, and vanquished
all the others. There was the principle of the binding force of a will
disposing of the estate of a testator in conformity with law. That principle,
pushed to the limit of its logic, seemed to uphold the title of the murderer.
There was the principle that civil courts may not add to the pains and
penalties of crimes. That, pushed to the limit of its logic, seemed again
to uphold his title. But over against these was another principle, of greater
generality, its roots deeply fastened in universal sentiments of justice,
the principle that no man should profit from his own inequity or take advantage
of his own wrong. The logic of this principle prevailed over the logic
of the others. I say its logic prevailed. The thing which really interests
us, however, is why and how the choice was made between one logic and another.
In this instance, the reason is not obscure. One path was followed, another
closed, because of the conviction in the judicial mind that the one selected
led to justice. Analogies and
[41]
precedents and the principles behind
them were brought together as rivals for precedence; in the end, the principle
that was thought to be most fundamental, to represent the larger and deeper
social interests, put its competitors to flight. I am not greatly concerned
about the particular formula through which justice was attained. Consistency
was preserved, logic received its tribute, by holding that the legal title
passed, but that it was subjected to a constructive trust.39 A constructive
trust is nothing but "the formula through which the conscience of equity
finds expression."40 Property is acquired in such circumstances that
the holder of the legal title may not in good conscience retain the beneficial
interest. Equity, to express its disapproval of his conduct, converts him
into a trustee.41 Such formulas are merely the remedial devices by which
a result conceived of as right and just is
[42]
made to square
with principle and with the symmetry of the legal system. What concerns
me now is not the remedial device, but rather the underlying motive,
the indwelling, creative energy, which brings such devices into play. The
murderer lost the legacy for which the murder was committed because the
social interest served by refusing to permit the criminal to profit by
his crime is greater than that served by the preservation and enforcement
of legal rights of ownership. My illustration, indeed, has brought me ahead
of my story. The judicial process is there in microcosm. We go forward
with our logic, with our analogies, with our philosophies, till we reach
a certain point. At first, we have no trouble with the paths; they follow
the same lines. Then they begin to diverge, and we must make a choice between
them. History or custom or social utility or some compelling sentiment
of justice or sometimes perhaps a semi-intuitive apprehension of the
pervading spirit of our law must come to the rescue of the anxious judge,
and tell him where to go.
[43]
It is easy to accumulate examples of the
process--of the constant checking and testing of philosophy by justice,
and of justice by philosophy. Take the rule which permits recovery with
compensation for defects in cases of substantial, though incomplete performance.
We have often applied it for the protection of builders who in trifling
details and without evil purpose have departed from their contracts. The
courts had some trouble for a time, when they were deciding such cases,
to square their justice with their logic. Even now, an uneasy feeling betrays
itself in treatise and decision that the two fabrics do not fit. As I had
occasion to say in a recent case: "Those who think more of symmetry and
logic in the development of legal rules than of practical adaptation to
the attainment of a just result" remain "troubled by a classification where
the lines of division are so wavering and blurred."42 I have no doubt
that the inspiration of the rule is a mere sentiment of justice. That sentiment
asserting itself, we have proceeded to surround it
[44]
with the halo of conformity to precedent.
Some judges saw the unifying principle in the law of quasi-contracts. Others
saw it in the distinction between dependent and independent promises, or
between promises and conditions. All found, however, in the end that there
was a principle in the legal armory which, when taken down from the wall
where it was rusting, was capable of furnishing a weapon for the fight
and of hewing a path to justice. justice reacted upon logic, sentiment
upon reason, by guiding the choice to be made between one logic and another.
Reason in its turn reacted upon sentiment by purging it of what is arbitrary,
by checking it when it might otherwise have been extravagant, by relating
it to method and order and coherence and tradition.43
In this conception
of the method of logic or philosophy as one organon among several, I find
nothing hostile to the teachings of continental jurists who would dethrone
it from its place and
[45]
power in systems of jurisprudence other than our own. They
have combated an evil which has touched the common law only here and there,
and lightly. I do not mean that there are not fields where we have stood
in need of the same lesson. In some part, however, we have been saved by
the inductive process through which our case law has developed from evils
and dangers inseparable from the development of law, upon the basis of
the jus scriptum, by a process of deduction.44 Yet even continental jurists
who emphasize the need of other methods, do not ask us to abstract from
legal principles all their fructifying power. The misuse of logic or philosophy begins when its method and its ends are treated as supreme and
final. They can never be banished altogether. "Assuredly," says François
Gény,.45 there should be no question of banishing ratiocination and logical
methods from the
[46]
science of positive law." Even general principles may
sometimes be followed rigorously in the deduction of their consequences.
"The abuse," he says, "consists, if I do not mistake, in envisaging ideal
conceptions, provisional and purely subjective in their nature, as endowed
with a permanent objective reality. And this false point of view, which,
to my thinking, is a vestige of the absolute realism of the middle ages,
ends in confining the entire system of positive law, a priori, within a
limited number of logical categories, which are predetermined in essence,
immovable in basis, governed by inflexible dogmas, and thus incapable of
adapting themselves to the ever varied and changing exigencies of life."
In law, as in every other branch of knowledge, the truths given by induction
tend to form the premises for new deductions. The lawyers and the judges
of successive generations do not repeat for themselves the process of verification,
any more than most of us repeat the demonstrations of the truths of astronomy
or physics. A stock of juridical conceptions and formulas is
[47]
developed,
and we take them, so to speak, ready-made. Such fundamental conceptions
as contract and possession and ownership and testament and many others
are there, ready for use. How they came to be there, I do not need to inquire.
I am writing, not a history of the evolution of law, but a sketch of the
judicial process applied to law full grown. These fundamental conceptions
once attained form the starting point from which are derived new consequences,
which, at first tentative and groping, gain by reiteration a new permanence
and certainty. In the end, they become accepted themselves as fundamental
and axiomatic. So it is with the growth from precedent to precedent. The
implications of a decision may in the beginning be equivocal. New cases
by commentary and exposition extract the essence. At last there emerges
a rule or principle which becomes a datum, a point of departure, from which
new lines will be run, from which new courses will be measured. Sometimes
the rule or principle is found to have been formulated too narrowly or
too broadly, and has to be reframed.
[48]
Sometimes it is accepted as a postulate
of later reasoning, its origins are forgotten, it becomes a new stock of
descent, its issue unite with other strains, and persisting permeate the
law. You may call the process one of analogy or of logic or of philosophy
as you please. Its essence in any event is the derivation of a consequence
from a rule or a principle or a precedent which, accepted as a datum, contains
implicitly within itself the germ of the conclusion. In all this, I do not
use the word philosophy in any strict or formal sense. The method tapers
down from the syllogism at one end to mere analogy at the other. Sometimes
the extension of a precedent goes to the limit of its logic. Sometimes
it does not go so far. Sometimes by a process of analogy it is carried
even farther. That is a tool which no system of jurisprudence has been
able to discard.46 A rule which has worked well in one field, or which,
in any event, is there whether its workings have been revealed or not,
is carried over into another. Instances of such a process I group
[49]
under the same heading as those
where the nexus of logic is closer and more binding.47 At bottom and in their
underlying motives, they are phases of the same method. They are inspired
by the same yearning for consistency, for certainty, for uniformity of
plan and structure. They have their roots in the constant striving of the
mind for a larger and more inclusive unity, in which differences will be
reconciled, and abnormalities will vanish.
[50]
Continue to Lecture II
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