Lecture IV.
Adherence to Precedent.
The Subconscious Element in the
Judicial Process.
Conclusion.
THE system of law-making by judicial decisions which supply the rule for transactions closed before the decision was announced
would indeed be intolerable in its hardship and
oppression if natural law, in the sense in which
I have used the term, did not supply the main
rule of judgment to the judge when precedent
and custom fail or are displaced. Acquiescence
in such a method has its basis in the belief that
when the law has left the situation uncovered
by any pre-existing rule, there is nothing to do
except to have some impartial arbiter declare
what fair and reasonable men, mindful of the
habits of life of the community, and of the
standards of justice and fair dealing prevalent
among them, ought in such circumstances to do,
with no rules except those of custom and conscience
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to regulate their conduct. The feeling is
that nine times out of ten, if not oftener, the
conduct of right-minded men would not have
been different if the rule embodied in the decision
had been announced by statute in advance. In
the small minority of cases, where ignorance has
counted, it is as likely to have affected one side
as the other; and since a controversy has arisen
and must be determined somehow, there is nothing to do, in default of a rule already made, but
to constitute some authority which will make
it after the event. Some one must be the loser;
it is part of the game of life; we have to pay
in countless ways for the absence of prophetic
vision. No doubt the ideal system, if it were
attainable, would be a code at once so flexible
and so minute, as to supply in advance for
every conceivable situation the just and fitting
rule. But life is too complex to bring the attainment of this ideal within the compass of human
powers. We must recognize the truth, says Gény,1
that the will (la volonté) which inspires a statute
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"extends only over a domain of concrete facts,
very narrow and very limited. Almost always, a
statute has only a single point in view. All
history demonstrates that legislation intervenes
only when a definite abuse has disclosed itself,
through the excess of which public feeling has
finally been aroused. When the legislator interposes, it is to put an end to such and such facts,
very clearly determined, which have provoked
his decision. And if, to reach his goal, he thinks
it proper to proceed along the path of general
ideas and abstract formulas, the principles that
he announces have value, in his thougbt, only in
the measure in which they are applicable to the
evils which it was his effort to destroy, and to
similar conditions which would tend to spring
from them. As for other logical consequences to
be deduced from these principles, the legislator
has not suspected them; some, perhaps many,
if he had foreseen, he would not have hesitated to repudiate. In consecrating them, no
one can claim either to be following his will or to
be bowing to his judgment. All that one does
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thereby is to develop a principle, henceforth
isolated and independent of the will which
created it, to transform it into a new entity,
which in turn develops of itself, and to give it
an independent life, regardless of the will of the
legislator and most often in despite of it." These
are the words of a French jurist, writing of a
legal system founded on a code. The gaps inevitable in such a system must, at least in equal
measure, be inevitable in a system of case law
built up, haphazard, through the controversies
of litigants.2 In each system, hardship must at
times result from postponement of the rule of
action till a time when action is complete. It is
one of the consequences of the limitations of the
human intellect and of the denial to legislators
and judges of infinite prevision. But the truth is,
as I have said, that even when there is ignorance
of the rule, the cases are few in which ignorance
has determined conduct. Most often the controversy arises about something that would
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have happened anyhow. An automobile is manufactured with defective wheels. The question is
whether the manufacturer owes a duty of inspection to anyone except the buyer.3 The occupant of the car, injured because of the defect,
presses one view upon the court; the manufacturer, another. There is small chance, whichever party prevails, that conduct would have
been different if the rule had been known in
advance. The manufacturer did not say to himself, "I will not inspect these wheels, because that
is not my duty." Admittedly, it was his duty, at
least toward the immediate buyer. A wrong in
any event has been done. The question is to
what extent it shall entail unpleasant consequences on the wrongdoer.
I say, therefore, that in the vast majority of
cases the retrospective effect of judge-made law
is felt either to involve no hardship or only such
hardship as is inevitable where no rule has been
declared. I think it is significant that when the
hardship is felt to be too great or to be unnecessary,
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retrospective operation is withheld.
Take the cases where a court of final appeal has
declared a statute void, and afterward, reversing
itself, declares the statute valid. Intervening
transactions have been governed by the first
decision. What shall be said of the validity of
such transactions when the decision is overruled?
Most courts in a spirit of realism have held that
the operation of the statute has been suspended
in the interval.4 It may be hard to square such
a ruling with abstract dogmas and definitions.
When so much else that a court does is done
with retroactive force, why draw the line here?
The answer is, I think, that the line is drawn
here, because the injustice and oppression of a
refusal to draw it would be so great as to be intolerable. We will not help out the man who has
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trusted to the judgment of some inferior court.5 In
his case, the chance of miscalculation is felt to be a
fair risk of the game of life, not different in degree
from the risk of any other misconception of right or
duty. He knows that be has taken a chance, which
caution often might have avoided. The judgment
of a court of final appeal is felt to stand upon a
different basis. I am not sure that any adequate
distinction is to be drawn between a change of
ruling in respect of the validity of a statute and a
change of ruling in respect of the meaning or
operation of a statute,6
or even in respect of the meaning or operation of a
rule of common law.7 Where the line of division will
some day be located, I will make no attempt to say.
I feel assured, however, that its location, wherever
it shall be, will be governed, not by metaphysical
conceptions of the nature of judge-made law, nor
by the fetich of some implacable tenet, such as that
of the division of
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governmental powers,8 but by considerations of
convenience, of utility, and of the deepest
sentiments of justice.
In these days, there is a good deal of discussion
whether the rule of adherence to precedent ought to
be abandoned altogether.9 I would not go so far
myself. I think adherence to precedent should be
the rule and not the exception. I have already had
occasion to dwell upon some of the considerations
that sustain it. To these I may add that the labor of
judges would be increased almost to the breaking
point if every past decision could be reopened in
every case, and one could not lay one's own course
of bricks on the secure foundation of the courses
laid by others who had gone before him. Perhaps
the constitution of my own court has tended to
accentuate this belief. We have had ten judges, of
whom
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only seven sit at a time. It happens again and
again, where the question is a close one, that a
case which one week is decided one way might
be decided another way the next if it were then
heard for the first time. The situation would,
however, be intolerable if the weekly changes in
the composition of the court were accompanied
by changes in its rulings. In such circumstances
there is nothing to do except to stand by the
errors of our brethren of the week before,
whether we relish them or not. But I am ready
to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought
to be in some degree relaxed. I think that when
a rule, after it has been duly tested by experience,
has been found to be inconsistent with the sense
of justice or with the social welfare, there should
be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in
the field of constitutional law.10 Perhaps we
should do so oftener in fields of private law
where considerations of social utility are not so
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aggressive and insistent. There should be greater
readiness to abandon an untenable position when
the rule to be discarded may not reasonably be
supposed to have determined the conduct of the
litigants, and particularly when in its origin it
was the product of institutions or conditions
which have gained a new significance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwy v.
Connecticut Co., 89 Conn. 74, 99, express the tone
and temper in which problems should be met:
"That court best serves the law which recognizes
that the rules of law which grew up in a remote
generation may, in the fullness of experience, be
found to serve another generation badly, and
which discards the old rule when it finds that
another rule of law represents what should be according to the established and settled judgment
of society, and no considerable property rights
have become vested in reliance upon the old rule.
It is thus great writers upon the common law
have discovered the source and method of its
growth, and in its growth found its health and
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life. It is not and it should not be stationary.
Change of this character should not be left to the
legislature." If judges have wofully misinterpreted the mores of their day, or if the mores
of their day are no longer those of ours, they
ought not to tie, in helpless submission, the hands
of their successors.
Let me offer one or two examples to make my
meaning plainer. I offer them tentatively and
without assurance that they are apt. They will
be helpful none the less. The instance may be
rejected, but the principle abides.
It is a rule of the common law that a surety
is discharged from liability if the time of payment is extended by contract between the principal debtor and the creditor without the surety's
consent. Even an extension for a single day will
be sufficient to bring about that result.11 Without such an extension, the surety would have the
privilege upon the maturity of the debt of making payment to the creditor, and demanding
immediate subrogation to the latter's remedies
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against the principal. He must, therefore, it is
said, be deemed to have suffered prejudice if,
by extension of the due date, the right has been
postponed. I have no doubt that this rule may
justly be applied whenever the surety can show
that the extension has resulted in actual damage,
as where the principal in the interval has become
insolvent, or the value of the security has been
impaired, though even in such circumstances the
measure of exoneration ought in justice to be determined by the extent of the damage suffered.
Perhaps there might be justice in permitting
exoneration whenever the surety had tendered
payment of the debt, and demanded subrogation
to the remedies against the debtor. Perhaps the
burden of disproving prejudice ought to be cast
upon the creditor. No such limitations have been
recognized. The rule applies to cases where
neither tender nor actual damage is established
or pretended. The law has shaped its judgments
upon the fictitious assumption that a surety,
who has probably lain awake at nights for fear
that payment may some day be demanded, has
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in truth been smarting under the repressed desire to force an unwelcome payment on a reluctant or capricious creditor. The extended period
has gone by; the surety has made no move, has
not even troubled himself to inquire; yet he is
held to be released on the theory that were it
not for the extension, of which he knew nothing,
and by which his conduct could not have been
controlled, he would have come forward voluntarily with a tender of the debt. Such rules are
survivals of the days when commercial dealings
were simpler, when surety companies were unknown, when sureties were commonly generous
friends whose confidence had been abused, and
when the main effort of the courts seems to have
been to find some plausible excuse for letting
them out of their engagements. Already I see
some signs of a change of spirit in decisions of
recent dates.12 I think we may well ask ourselves whether courts are not under a duty to go
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farther, and place this branch of the law upon
a basis more consistent with the realities of
business experience and the moralities of life.
It is another rule of the common law that a
parol agreement, though subsequently made, is
ineffective to vary or discharge a contract under
seal.13 In days when seals counted for a good
deal, there may have been some reason in this
recognition of a mystical solemnity. In our day,
when the perfunctory initials "L. S." have replaced the heraldic devices, the law is conscious
of its own absurdity when it preserves the rubrics
of a vanished era.14 Judges have made worthy,
if shamefaced, efforts, while giving lip service to
the rule, to riddle it with exceptions and by
distinctions reduce it to a shadow.15 A recent
case suggests that timidity, and not reverence,
has postponed the hour of dissolution.16 The law
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will have cause for gratitude to the deliverer
who will strike the fatal blow.
I have drawn illustrations from the field of
substantive law. The law of evidence and generally the whole subject of procedure supply
fields where change may properly be made with
a freedom even greater. The considerations of
policy that dictate adherence to existing rules
where substantive rights are involved, apply
with diminished force when it is a question of
the law of remedies. Let me take an illustration
from the law of evidence. A man is prosecuted
for rape. His defense is that the woman consented. He may show that her reputation for
chastity is bad. He may not show specific, even
though repeated, acts of unchastity with another
man or other men.17 The one thing that any
sensible trier of the facts would wish to know
above all others in estimating the truth of his defense is held by an inflexible rule to be something that must be excluded from the consideration of the jury. Even though the woman takes
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the stand herself, the defendant is not greatly
helped, for though he may then cross-examine
her about other acts, he is concluded by her
answer. Undoubtedly a judge should exercise a
certain discretion in the admission of such evidence, should exclude it if too remote, and should
be prompt by granting a continuance or otherwise to obviate any hardship resulting from
surprise. That is not the effect of the present
rule. The evidence is excluded altogether and
always. Some courts, indeed, have taken a different view, but their number unfortunately is
small. Here, as in many other branches of the
law of evidence, we see an exaggerated reliance
upon general reputation as a test for the ascertainment of the character of litigants or witnesses. Such a faith is a survival of more simple
times. It was justified in days when men lived in
small communities. Perhaps it has some justification even now in rural districts. In the life of
great cities, it has made evidence of character a
farce. Here, as in many other branches of adjective law, a spirit of realism should bring about a
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harmony between present rules and present
needs.
None the less, the rule of adherence to precedent is applied with less rigidity in the United
States than in England, and, I think, with a
rigidity that is diminishing even here. The House
of Lords holds itself absolutely bound by its
own prior decisions.18 The United States Supreme
Court and the highest courts of the several
states overrule their own prior decisions when
manifestly erroneous.19 Pollock, in a paper entitled "The Science of Case Law," written more
than forty years ago, spoke of the freedom with
which this was done, as suggesting that the law
was nothing more than a matter of individual
opinion.20 Since then the tendency has, if anything, increased. An extreme illustration may be
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found in a recent decision of a federal court.21 The plaintiff sued a manufacturer of automobiles
to recover damages for personal injuries resulting
from a defective car. On the first trial he had a
verdict, which the Circuit Court of Appeals for
the second circuit reversed on the ground that
the manufacturer owed no duty to the plaintiff,
the occupant of the car, since the latter was not
the original purchaser, but had bought from
some one else.22 On a second trial, the judge, in
obedience to this ruling, dismissed the complaint,
and a writ of error brought the case before the
same appellate court again. In the meantime,
the New York Court of Appeals had held, in an
action against another manufacturer, that there
was a duty in such circumstances, irrespective
of privity of contract.23 The federal court followed that decision, overruled its prior ruling,
and reversed the judgment of dismissal which
had been entered in compliance with its mandate.
The defendant in that case who first reversed the
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judgment because the complaint had not been
dismissed, and then suffered a reversal because
on the same evidence the complaint had been
dismissed, probably has some views of his own
about the nature of the judicial process. I do not
attempt to say whether departure from the rule
of adherence to precedent was justified in such
conditions. One judge dissenting held the view
that the earlier decision should have been applied
as the law of the case irrespective of its correctness, like the rules of res adjudicata. The conclusion of the majority of the court, whether right or wrong, is interesting as evidence of a
spirit and a tendency to subordinate precedent
to justice. How to reconcile that tendency, which
is a growing and in the main a wholesome one,
with the need of uniformity and certainty, is one
of the great problems confronting the lawyers
and judges of our day. We shall have to
our way here as elsewhere in the law. Some
where between worship of the past and exaltation of the present the path of safety will be
found.
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Our survey of judicial methods teaches us, I
think, the lesson that the whole subject matter
of jurisprudence is more plastic, more malleable,
the moulds less definitively cast, the bounds of
right and wrong less preordained and constant,
than most of us, without the aid of some such
analysis, have been accustomed to believe. We
like to picture to ourselves the field of the law
as accurately mapped and plotted. We draw our
little lines, and they are hardly down before we
blur them. As in time and space, so here. Divisions are working hypotheses, adopted for convenience. We are tending more and more toward
an appreciation of the truth that, after all, there
are few rules; there are chiefly standards and
degrees. It is a question of degree whether I have
been negligent. It is a question of degree whether
in the use of my own land, I have created a
nuisance which may be abated by my neighbor.
It is a question of degree whether the law which
takes my property and limits my conduct impairs my liberty unduly. So also the duty of a
judge becomes itself a question of degree, and
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he is a useful judge or a poor one as he
estimates the measure accurately or loosely. He
must balance all his ingredients, his philosophy,
his logic, his analogies, his history, his customs,
his sense of right, and all the rest, and adding
a little here and taking out a little there, must
determine, as wisely as he can, which weight shall
tip the scales. If this seems a weak and inconclusive summary, I am not sure that the fault
is mine. I know he is a wise pharmacist who from
a recipe so general can compound a fitting
remedy. But the like criticism may be made of
most attempts to formulate the principles which
regulate the practice of an art. W. Jethro Brown
reminds us in a recent paper on "Law and Evolution,"24 that "Sir Joshua Reynolds' book on
painting, offers little or no guidance to those who
wish to become famous painters. Books on
literary styles are notoriously lacking, speaking
as a rule, in practical utility." After the wearisome process of analysis has been finished, there
must be for every judge a new synthesis which
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he will have to make for himself. The most that
he can hope for is that with long thought and
study, with years of practice at the bar or on the
bench, and with the aid of that inward grace
which comes now and again to the elect of any
calling, the analysis may help a little to make
the synthesis a true one.
In what I have sald, I have thrown, perhaps
too much, into the background and the shadow
the cases where the controversy turns not upon
the rule of law, but upon its application to the
facts. Those cases, after all, make up the bulk
of the business of the courts. They are important
for the litigants concerned in them. They call
for intelligence and patience and reasonable discernment on the part of the judges who must
decide them. But they leave jurisprudence where
it stood before. As applied to such cases, the
judicial process, as was sald at the outset of these
lectures, is a process of search and comparison,
and little else. We have to distinguish between
the precedents which are merely static, and those
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which are dynamic.25 Because the former out-number the latter many times, a sketch of the
judicial process which concerns itself almost
exclusively with the creative or dynamic element, is likely to give a false impression, an
overcolored picture, of uncertainty in the law and
of free discretion in the judge. Of the cases that
come before the court in which I sit, a majority,
I think, could not, with semblance of reason, be
decided in any way but one. The law and its
application alike are plain. Such cases are predestined, so to speak, to affirmance without
opinion. In another and considerable percentage,
the rule of law is certain, and the application
alone doubtful. A complicated record must be
dissected, the narratives of witnesses, more or
less incoherent and unintelligible, must be
analyzed, to determine whether a given situation
comes within one district or another upon the
chart of rights and wrongs. The traveler who
knows that a railroad crosses his path must look
for approaching trains. That is at least the general
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rule. In numberless litigations the description of the landscape must be studied to see whether vision has been obstructed, whether something has been done or omitted to put the traveler off his guard. Often these cases and others like them provoke differ
ence of opinion
among judges. Jurisprudence remains untouched,
however, regardless of the outcome. Finally there
remain a percentage, not large indeed, and yet
not so small as to be negligible, where a decision
one way or the other, will count for the future,
will advance or retard, sometimes much, sometimes little, the development of the law. These
are the cases where the creative element in the
judicial process finds its opportunity and power.
It is with these cases that I have chiefly concerned myself in all that I have said to you. In
a sense it is true of many of them that they
might be decided either way. By that I mean that
reasons plausible and fairly persuasive might
be found for one conclusion as for another. Here
come into play that balancing of judgment, that
testing and sorting of considerations of analogy
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and logic and utility and fairness, which I have
been trying to describe. Here it is that the judge
assumes the function of a lawgiver. I was much
troubled in spirit, in my first years upon the
bench, to find how trackless was the ocean on
which I had embarked. I sought for certainty. I
was oppressed and disheartened when I found
that the quest for it was futile. I was trying to
reach land, the solid land of fixed and settled
rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my
own vacillating mind and conscience. I found
"with the voyagers in Browning's 'Paracelsus'
that the real heaven was always beyond."26 As
the years have gone by, and as I have reflected
more and more upon the nature of the judicial
process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation;
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and that the doubts and misgivings, the hopes
and fears, are part of the travail of mind, the
pangs of death and the pangs of birth, in which
principles that have served their day expire, and
new principles are born.
I have spoken of the forces of which judges
avowedly avail to shape the form and content of
their judgments. Even these forces are seldom
fully in consciousness. They lie so near the surface, however, that their existence and influence
are not likely to be disclaimed. But the subject
is not exhausted with the recognition of their
power. Deep below consciousness are other
forces, the likes and the dislikes, the predilections
and the prejudices, the complex of instincts and
emotions and habits and convictions, which make
the man, whether he be litigant or judge. I wish
I might have found the time and opportunity to
pursue this subject farther. I shall be able, as it
is, to do little more than remind you of its
existence.27 There has been a certain lack of
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candor in much of the discussion of the theme,
or rather perhaps in the refusal to discuss it, as
if judges must lose respect and confidence by the
reminder that they are subject to human limitations. I do not doubt the grandeur of the conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing
and deflecting forces. None the less, if there is
anything of reality in my analysis of the judicial
process, they do not stand aloof on these chill
and distant heights; and we shall not help the
cause of truth by acting and speaking as if they
do. The great tides and currents which engulf
the rest of men do not turn aside in their course
and pass the judges by. We like to figure to
ourselves the processes of justice as coldly objective and impersonal. The law, conceived of as
a real existence, dwelling apart and alone, speaks,
through the voices of priests and ministers, the
words which they have no choice except to utter.
That is an ideal of objective truth toward which
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every system of jurisprudence tends. It is an
ideal of which great publicists and judges have
spoken as of something possible to attain. "The
judges of the nation," says Montesquieu, "are
only the mouths that pronounce the words of
the law, inanimate beings, who can moderate
neither its force nor its rigor."28 So Marshall, in
Osborne v. Bank of the United States, 9 Wheat.
738, 866: The judicial department "has no will
in any case.... Judicial power is never exercised
for the purpose of giving effect to the will of the
judge; always for the purpose of giving effect to
the will of the legislature; or in other words, to
the will of the law." It has a lofty sound; it is
well and finely said; but it can never be more
than partly true. Marshall's own career is a
conspicuous illustration of the fact that the ideal
is beyond the reach of human faculties to attain.
He gave to the constitution of the United States
the impress of his own mind; and the form of
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our constitutional law is what it is, because he
moulded it while it was still plastic and malleable in the fire of his own intense convictions.
At the opposite extreme are the words of the
French jurist, Saleilles, in his treatise "De la
Personnalité Juridique":29 "One wills at the beginning the result; one finds the principle afterwards; such is the genesis of all juridical construction. Once accepted, the construction presents itself, doubtless
, in the ensemble of legal
doctrine, under the opposite aspect. The factors
are inverted. The principle appears as an initial
cause, from which one has drawn the result
which is found deduced from it." I would not
put the case thus broadly. So sweeping a statement exaggerates the element of free volition. It
ignores the factors of determinism which cabin
and confine within narrow bounds the range
of unfettered choice. None the less, by its very
excess of emphasis, it supplies the needed corrective of an ideal of impossible objectivity.
Nearer to the truth, and midway between these
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extremes, are the words of a man who was not a
jurist, but whose intuitions and perceptions were
deep and brilliant--the words of President
Roosevelt in his message of December 8, 1908,
to the Congress of the United States:30 "The
chief lawmakers in our country may be, and
often are, the judges, because they are the
seat of authority. Every time they interpret contract, property, vested rights, due process of law,
liberty, they necessarily enact into law parts of
a system of social philosophy; and as such interpretation is fundamental, they give direction
to all law-making. The decisions of the courts on
economic and social questions depend upon their
economic and social philosophy; and for the
peaceful progress of our people during the
twentieth century we shall owe most to those
judges who hold to a twentieth century economic
and social philosophy and not to a long outgrown
philosophy, which was itself the product of
primitive economic conditions."
I remember that this statement when made
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aroused a storm of criticism. It betrayed ignorance, they said, of the nature of the judicial
process. The business of the judge, they told us,
was to discover objective truth. His own little
individuality, his tiny stock of scattered and
unco-ordinated philosophies, these, with all his
weaknesses and unconscious prejudices, were to
be laid aside and forgotten. What did men care
for his reading of the eternal verities? It was
not worth recording. What the world was seeking was the eternal verities themselves. Far am
I from denying that this is, indeed, the goal
toward which all of us must strive. Something of
Pascal's spirit of self-search and self-reproach
must come at moments to the man who finds
himself summoned to the duty of shaping the
progress of the law. The very breadth and scope
of the opportunity to give expression to his
finer self seem to point the accusing finger of
disparagement and scorn. What am I that in
these great movements onward, this rush and
sweep of forces, my petty personality should deflect them by a hairbreadth? Why should the
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pure light of truth be broken up and impregnated
and colored with any element of my being?
Such doubts and hesitations besiege one now
and again. The truth is, however, that all these
inward questionings are born of the hope and
desire to transcend the limitations which hedge
our human nature. Roosevelt, who knew men,
had no illusions on this score. He was not positing
an ideal. He was not fixing a goal. He was
measuring the powers and the endurance of those
by whom the race was to be run. My duty as
judge may be to objectify in law, not my own
aspirations and convictions and philosophies, but
the aspirations and convictions and philosophies
of the men and women of my time. Hardly shall
I do this well if my own sympathies and beliefs
and passionate devotions are with a time that is
past. "We shall never be able to flatter ourselves,
in any system of judicial interpretation, that we
have eliminated altogether the personal measure
of the interpreter. In the moral sciences, there
is no method or procedure which entirely supplants
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subjective reason."31 We may figure the
task of the judge, if we please, as the task of a
translator, the reading of signs and symbols
given from without. None the less, we will not
set men to such a task, unless they have absorbed
the spirit, and have filled themselves with a love,
of the language they must read.
I have no quarrel, therefore, with the doctrine
that judges ought to be in sympathy with the
spirit of their times. Alas! assent to such a
generality does not carry us far upon the road
to truth. In every court there are likely to be
as many estimates of the "Zeitgeist" as there
are judges on its bench. Of the power of favor or
prejudice in any sordid or vulgar or evil sense,
I have found no trace, not even the faintest,
among the judges whom I have known. But every
day there is borne in on me a new conviction of
the inescapable relation between the truth without us and the truth within. The spirit of the age,
as it is revealed to each of us, is too often only
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the spirit of the group in which the accidents of
birth or education or occupation or fellowship
have given us a place. No effort or revolution
of the mind will overthrow utterly and at all
times the empire of these subconscious loyalties.
"Our beliefs and opinions," says James Harvey
Robinson,32 "like our standards of conduct come
to us insensibly as products of our companionship with our fellow men, not as results of our
personal experience and the inferences we individually make from our own observations. We
are constantly misled by our extraordinary faculty of 'rationalizing'--that is, of devising plausible arguments for accepting what is imposed upon
us by the traditions of the group to which we belong. We are abjectly credulous by nature, and instinctively accept the verdicts of the group. We
are suggestible not merely when under the spell
of an excited mob or a fervent revival, but we are
ever and always listening to the still small voice
of the herd, and are ever ready to defend and
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justify its instructions and warnings, and accept
them as the mature results of our own reasoning." This was written, not of judges specially,
but of men and women of all classes. The training of the judge, if coupled with what is styled
the judicial temperament, will help in some
degree to emancipate him from the suggestive
power of individual disliltes and prepossessions.
It will help to broaden the group to which his
subconscious loyalties are due. Never will these
loyalties be utterly extinguished while human
nature is what it is. We may wonder sometimes
how from the play of all these forces of individualism, there can come anything coherent, anything but chaos and the void. Those are the
moments in which we exaggerate the elements of
difference. In the end there emerges something
which has a composite shape and truth and order.
It has been said that "History, like mathematics,
is obliged to assume that eccentricities more or
less balance each other, so that something remains
constant at last."33 The like is true of the
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work of courts. The eccentricities of judges
balance one another. One judge looks at problems from the point of view of history, another
from that of philosophy, another from that of
social utility, one is a formalist, another a
latitudinarian, one is timorous of change, another dissatisfied with the present; out of the
attrition of diverse minds there is beaten something which has a constancy and uniformity and
average value greater than its component elements. The same thing is true of the work of
juries. I do not mean to suggest that the product
in either case does not betray the flaws inherent
in its origin. The flaws are there as in every
human institution. Because they are not only
there but visible, we have faith that they will
be corrected. There is no assurance that the
rule of the majority will be the expression of
perfect reason when embodied in constitution or
in statute. We ought not to expect more of it
when embodied in the judgments of the courts.
The tide rises and falls, but the sands of error
crumble.
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The work of a judge is in one sense enduring
and in another sense ephemeral. What is good
in it endures. What is erroneous is pretty sure
to perish. The good remains the foundation on
which new structures will be built. The bad will
be rejected and cast off in the laboratory of the
years. Little by little the old doctrine is undermined. Often the encroachments are so gradual
that their significance is at first obscured. Finally
we discover that the contour of the landscape has
been changed, that the old maps must be cast
aside, and the ground charted anew. The process,
with all its silent yet inevitable power, has been
described by Mr. Henderson with singular
felicity:34 "When an adherent of a systematic
faith is brought continuously in touch with influences and exposed to desires inconsistent with
that faith, a process of unconscious cerebration
may take place, by which a growing store of
hostile mental inclinations may accumulate,
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strongly motivating action and decision, but
seldom emerging clearly into consciousness. In
the meantime the formulas of the old faith are
retained and repeated by force of habit, until
one day the realization comes that conduct and
sympathies and fundamental desires have become so inconsistent with the logical framework
that it must be discarded. Then begins the task
of building up and rationalizing a new faith."
Ever in the making, as law develops through
the centuries, is this new faith which silently
and steadily effaces our mistakes and eccentricities. I sometimes think that we worry ourselves overmuch about the enduring consequences of our errors. They may work a little confusion
for a time. In the end, they will be modified or
corrected or their teachings ignored. The future
takes care of such things. In the endless process
of testing and retesting, there is a constant rejection of the dross, and
a constant retention of
whatever is pure and sound and fine.
The future, gentlemen, is yours. We have been
called to do our parts in an ageless process. Long
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after I am dead and gone, and my little part in
it is forgotten, you will be here to do your share,
and to carry the torch forward. I know that the
flame will burn bright while the torch is in
your keeping.
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