GENERAL OBSERVATIONS ON THE EFFECTS OF PERSONAL, POLITICAL, AND ECONOMIC INFLUENCES IN THE DECISIONS OF JUDGES

BY CHARLES GROVE HAINES

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EXTRA-LEGAL INFLUENCES IN THE ADMINISTRATION OF PRIVATE LAW1

An increasing interest in the study of legal philosophy and history, as well as of the legal systems of other countries, has raised anew the perennial problem in the administration of justice-the place and function of the judge. Two theories as to the place and function of the judge have been more or less prevalent in the growth of political organization. According to one theory, the judge as a seeker after the truth, from divine and other sources, discovers the principles on which his conclusions bearing on a case may be based and from which a judgment follows, subject to no variance or turning. From another viewpoint, the judge gathers his conclusions from his own concepts and conscience influenced largely as these are by his training and experience, and by the social and economic conditions surrounding him and the litigants whose controversies are to be settled. The former of these theories, when carried to an extreme, is known as the "mechanical theory"; the latter, as the theory of "free legal decision." The former has prevailed, particularly in Anglo-American legal systems; the latter, in continental European countries where the Roman civil law prevails. A short analysis of these theories will be of service in the presentation of the problem of the effects of personal, political, and economic influences in the decisions of judges.

The Mechanical Theory. The mechanical theory has a long history. It seems to be a characteristic of mankind to be guided by judges, prophets and other seers who essay to gather from unknown, mysterious, and semi-divine sources the principles and rules which are supposed to direct human conduct. Thus, the judges of ancient Greece and Rome were regarded as the mediums through which the

1. Part of an introduction to a study now in preparation relating to the effects of personal, political and economic influences in the decisions of the Supreme Court of the United States.

will of the gods on right and justice, in their effect on mankind, was made known. During the Middle Ages, when church influences were dominant, the judges were the instruments through which the principles of the divine law were applied to men in their religious and civil conduct. Those interpreting and applying the law were, indeed, regarded as seekers "among divine sources for the pre-existent truth." When the superstitions of the past had lost some of their rigor and when the grip of the church over the control of human relations had weakened, the idea continued to prevail that those called upon to settle civil controversies were merely appointed agents to discover and apply pre-existent truths and principles. The leaders in the development of the common law were among the advocates of the idea that they were seeking and applying eternal principles of right and justice. Through the channel of the early common law, the mechanical theory has found its way into the warp and woof of Anglo-American law. It continues today, modified, of course, in form and meaning, as one of the main theories of our law. It is based on the assumption that in order not to become arbitrary a judge must not be affected by the particular circumstances of the case before him.3

The mechanical theory which postulates absolute legal principles, existing prior to and independent of all judicial decisions, and merely discovered and applied by courts, has been characterized as a theory of a "judicial slot machine." According to this theory, it is assumed that provisions have been made in advance for legal principles, so that it is merely necessary to put the facts into the machine and draw therefrom an appropriate decision. This view of the function of a judge has been subjected to constant criticisms, and yet it continues to hold sway in Anglo-American law as

2. Carter "The Province of the Written and Unwritten Law" 9. 3. "Conservative political opinion in America cleaves to the tradition of the judge as passive interpreter, believing that his absolute loyalty to authoritative law is the price of his immunity from political pressure and of the security of his tenure": Hand "The Speech of Justice" Har. L. Rev. (1915-1916) XXIX 617.

For the influence of so-called eternal principles and natural law concepts in American judicial decisions consult an article by the writer on "The Law of Nature in State and Federal Judicial Decisions" Yale L. Jour. (1915-1916), XXV 617.

4. Pound in "The Science of Legal Method" 205-206.

5. Kantorowicz "Rechtswissenschaft und Soziologie" 5.

6. Cf. Pound in "The Science of Legal Method" 206; see also Cohen "Legal Theories and Social Science" N. Y. Bar. Assn. Reports (1915) at p. 184, in which this theory is styled the "phonograph theory of the judicial function."

7. For example Austin referred with contempt to "The childish fiction employed by our judges that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from

one of the strong determining forces guiding lawyers and judges. In fact, despite all influences to the contrary, American courts have clung to the belief that justice must be administered in accordance with fixed rules, which can be applied by a rather mechanical process of logical reasoning to a given state of facts and can be made to produce an inevitable result. And it is assumed that the very nature of law requires such a mechanical application of its rules and principles. Due to the general acceptance of this view by the legal fraternity, it has become a habit of those trained in law to bestow little attention upon their individual views or prejudices and to turn attention instead to precedents which are regarded as forming the authoritative basis of the law.

The Theory of Free Legal Decision. At the same time that the mechanical theory was dominant there were always justices and magistrates who frankly recognized that under the veil of the mysterious and divine sources of legal principles, it was necessary for judges to exercise discretion and to make choices as to the legal rules to be applied. Thus, there was an early recognition of the conflict between rule and discretion in the administration of justice. The idea that the judge was to exercise discretion in his choice of legal rules, though confined within narrow limits under the strict and formal provisions of primitive law, and though suppressed in the effort of the church in order to make it appear that all law emanated from the will of God, continued to gain adherents. With the growing freedom of the individual in the selection of his religious and moral ideas an impetus was given to the theory of the freedom of the judges in the selection of the legal rules and principles to be applied in the determination of civil controversies. This freedom, though looked upon with suspicion and held under subjection by various subterfuges and fictions, gradually became of such importance in the administration of law-especially in continental European countries-as to be recognized and advocated under the "theory of free legal decision."

Recognizing the rigidity and incompleteness of modern codes. and statutes, it is regarded as the duty of the European judges to decide matters as appears best to promote justice.8 Advocates of eternity, and merely declared from time to time by the judges": Jurisprudence (4 ed.), 655. See also Pound "Mechanical Jurisprudence" Col. L. Rev. (1908) VIII 605.

7a. Note on "Rule and Discretion in the Administration of Justice" Har. L. Rev. (1919-20) XXXIII 972.

8. Geny in "The Science of Legal Method" 42, 45; according to Geny, "The courts are led, without exceeding the well known limits of private law, whenever they have no formal guidance furnished by statute or established by

free legal decision state the function of the judge in different terms from those which would be used by American lawyers or judges. For instance, it is maintained that "the judge who would think and act rightly in his function of rendering judgment must be able, as far as inelastic provisions of the statute do not prevent him, to discover the law and make effective that which he himself, if placed in the situation of the parties, would feel to be right and just." The judge, it is observed, cannot escape the necessity of making up his own mind regarding certain economic questions, as, for instance, the propriety of corporate organizations, boycotts, etc., and to European jurists it seems better to "face this necessity with conscious frankness than to hide behind insincere scholastic arguments."

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In Anglo-American jurisdictions the conflict between the mechanical theory and the theory of free legal decision has been waged over the nature and scope of judicial legislation and over the relation of the judges to public policy. Those who support the mechanical theory hold that it is not the function of the judge to make or to change the law.11 This theory refuses to recognize anything but formulated legal rules and the facts and circumstances of a specific case. The advocates of mechanistic ideas in the United States have become the exponents of that curious phenomenon known as "a government of laws and not of men" and they deprecate the tendency to depart from definite legal rules in the administration of justice. They see grave dangers in the theory of free legal decision and oppose such devices as the suspended or indeterminate sentence as well as other modern tendencies to increase the range of discretion of judges. They believe that the human element is an undependable thing in administering justice and that little discretion. should be given to the judge and even then limits should be placed on its exercise.12

custom, to search for light among the social elements of every kind that are the living force behind the facts they deal with, if they wish to proceed with any assurance of being right." See also Kiss op. cit. 161. It may be observed that Anglo-American law based upon precedents and the case system permits the judge considerable freedom, whereas the continental law, based on codes, binds the action of judges with the result that a school of free legal decision has developed which "would override the letter and found all legal application on an enlightened social conscience." See Kocourek "Formal Relation between Law and Discretion" ILL. LAW REV. (1914-1915) IX 225, 235.

9. Gmelin "The Science of Legal Method" 89.

10. Ibid. 137.

11. According to Elihu Root the appeal to courts in the matter of social reform rests upon a misconception of the true function of a court. It is not within the judge's function or within his power to enlarge or improve or change the law. The Independent (Apr. 4, 1912) LXXII 704; Carter "Law, Its Origin, Growth and Function" 172, 3.

12. Cf. "Law and Discretion" Just. P. LXXXIV 335, 6.

The fundamental principle, however, that "whoever deals with juristic questions must always at the same time be a bit of legislator"13 has not been lost sight of by the expounders of Anglo-American law. In fact, it is recognized by all who survey without bias or prejudice the law-making processes in England and in the United States that the judges have been at all times making declarations of law independent of the statutes and have thus been engaged in the work of legislation.11

The significance of the process of judicial legislation in common law jurisdictions can best be appreciated in the summary and observations of Professor Dicey and a few other students of AngloAmerican legal history.

"As all lawyers are aware," says Mr. Dicey, "a large part and, as many would add, the best part of the law of England is judge-made law that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of judicial legislation. The amount of such judge-made law is in England far more extensive than a student realizes. Nine-tenths, at least, of the law of contract, and the whole, or nearly the whole of the law of torts are not to be discovered in any volume of the statutes."15

Judicial legislation in England, it is contended, has not been put to an end by the modern activity of legislatures. New circumstances and conditions are constantly to be met and it devolves upon the courts to adapt the law to such circumstances and conditions. Whole branches of modern law, it is claimed, have been built up, developed or created by the action of the courts.1 Far the greater part of the conflict of laws is the product of the process of judicial law-making. Modern instances of judicial legislation in English and American law are:

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1. Abolition of the legal power of husband to administer moderate correction.

2. Abolition of the view that public office is a kind of property.

13. Zitelmann "Die Gefahren des Bürgerlichen Gesetzbuches für die Rechtswissenshaft" 19.

14. J. H. Wigmore in "The Science of Legal Method": Introduction xxx; "A theory of legal sources that pays attention to the law as it really is cannot possibly disregard the existence of judge-made law": Kiss in "Science of Legal Method" 165.

15. A. V. Dicey "Law and Opinion in England" 359-360. "The whole of the rules of equity and nine-tenth of the rules of common law, have in fact been made by the judges": Mellish, L. J., in Allen v. Jackson (1875) 1 Ch. D. 399 at 405.

16. Dicey op. cit. 361.