law and the modern mind by jerome frank

7/23/2019 Law and the Modern Mind by Jerome Frank

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-it, XH i tSUSH JNC L o

Jerome Frank

Law

and the

Modern Mind

CHAPTEll

IV

J U D I C I A L L A W M A K IN G

HAVE judges the right and power to make law and change law?

Much good ink has been spilled in arguing that question. A brief

survey of the controversy will illuminate our thesis.

The conventional view may he summarized thus:

Law

is

a complete body of rules existing from time immemorial

and unchangeable except to the limited extent that legislatures have

changed the rules

by

enacted statutes. Legislatures arc expressly em

powered thus to change the law. But the judges are not to make or

change the law but to apply it. The law, ready-made, pre-exists the

judicial decisions.

Judges are simply " living oracles " of law.

They

arc merely

"the

speaking law."

Their

function

is

purely

passive. They

arc " but

the mouth which pronounces the law." They

no

more make or

invent new law than Columbus made or

i n v e n t ~ d

America.*

udicial opinions arc evidence of what the law is;

the

best

evidence,

but no more than that. When a former decision is overruled, we

must not say that the rule announced in the earlier decisio_n was once

the law and

has

now been changed by the later decision. }Ve must

view the earlier decision as laying down an erroneous rule.

It

was a

false

map of the law just as a pre-Columbian map of the world was

false. Emphatically, we must not refer to the new decision

as

making

new law.

It

only seems to do

so. It s

merely a

bit

of revised legal

cartography.

f

a judge actually attempted to contrive a new rule, he would

be


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JUDICIAL LAW-MAKING

:mdently contrary to reason, the subsequent judges

do

not pre

: ~ d

to

make new law, but to vindicate the old one from misrepre

~ - = t a t i o n .

The

prior judge's eyesight had been defective

and

he

a mistake in finding the law, which mistake is now being

by his successors.

Such is the conventional notion. There is a contrary minority view,

which any dispassionate observer must accept

as

obviously the

c o ~ r e c t

Tiew:

1

;; 1

No intelligent lawyer

woult .

in

this

day pretend that the de

cisions of the courtS

do

not add to and alter the law,

* says

Pollock,

a dimnguished English jurist.

Judge-made

law is real law, writes

Dicey, another famous legal commentator, though made under

the form of, and often described

by

judges no less than jurists, as the

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. , . Whole branches, not of ancient but of very mod

ern law, have been built up, developed or created

by

action of the

courts.,

1

Judges,

t};:;n,

do make and change law. The minority view

is

patently correct; the opposing arguments wffi not bear analysis.

What, then, explains the belief so tenaciously held that the judiciary

does not ever change the law or that, when it does, it is acting im-

properly? Why

is

it that judges adhere to what Morris Cohen has '

happily

called the phonographic theory of the judicial function ?

explains the recent remark of an eminent member of the Bar:

The man who claims that under our system courts make law

is

asaerting that the courts habitually act unconstitutionally

?

Why

do the courtS customan1y deny that they have any law-making power


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LAW AND TH MODERN

MIND

We revert to our thesis: The essence of the basic legal myth or

illusion

is

that law

can be entirely predictable. Back of this illusion

is

the childish desire to have a fixed father-controlled universe, free

of chance and

error

due to human fallibility.

In

early stages of legal development this desire was more intense

than how and there was

what

Sir

Henry

Maine has called a super

stitious disrelish of change which went to the extent of making men

oppose any modification of existing law even

by

statutory legislation.

We

have partially overcome the superstitious antipathy

to

legal change

so far as the change .results from the action of legislative bodies and

no little part of law

is

modified each year

by

statutes enacted by state

legislatures and by Congress.

But

such statutory legislation, while it may alter the law, does so,

ordinarily, only prospectively.

It

is

the usual practice - to some ex

tent it

is required by constitutional

prohibitions-

that changes em

bodied in statutes enacted by legislative bodies should not be retroactive

but should apply only to future conduct. Which

is to

say that, gener

ally speaking, a legal novelty brought about through statutory

legislation can

be

known

efore

men

do

any acts which may

be

affected

y

the innovation. Insofar, a man can conduct himself in

reliance upon the existing law knowing, at the time he acts, that any

changes thereafter

made by

a legislative body will not modify the law

upon which he relied. '

Consequently, absolute certainty and predictability are 'apparently

not endangered by alterations of law made or adopted

by

legislatures.

But

if it

is

once recognized

that

a judge, in the course of deciding

a case, can for the first time create the law applicable to that case, or

can alter the rules

which were

supposed to exist before the

case

was


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JUDICIAL LAW--MAKING

which should a lawsuit thereafter arise with reference to

my

act,

be changed

by

the judge who tries the case. For then the result

.it

that

my

case is decided according to law which was not in existence

, when I acted and which

I,

therefore, could not have known, predicted

or relied on when I acted.

If therefore, one has a powerful need

to

believe in the possibility

of anything like exact legal predictability, he will find judicial law

making intolerable

and

seek to deny its existence.

Hence .the myth that the judges have no power to change existing

law or make new law: it is a direct outgrowth of a subjective need

for believing in a stable, approximately unalterable legal wor l in

tHect, a child's world.

This

remark might be challenged

on

the ground that the desire

to avoid legal retroactivity

is

not subjective but practical, because,

it may be said, men cannot and will

not

engage in affairs without

having in mind the pertinent law. Yet reflection reveals the fact that

the supposed

practical

importance

of

avoiding legal retroactivity and

uncertainty is much overrated, since most men act without regard

to

the legal consequt. . es

of

their conduct, and, therefore, do not act

in reliance upon any given pre-existing

law:

"Practically,"

says

John Chipman Gray,

"in

its application to

actual affairs, for most of the laity, the law, except for a few c r ~ : ~ e

notions of the equity involved in some

of

its general principles,

is

all

e t post facto. When a man marries, or enters into a partnership, or

buys a piece of land, or engages in any other transactions, he has

the vaguest

possible

idea of the law governing the situation, and with

our complicated system of Jurisprudence, it is impossible

it

should

be otherwise.

f he

delayed

to

make a contract

or

do

an

act until

he .understood exactly all the legal consequences it involved, the con

tract would never be made or the act done.

Now

the

low of

which

man has no knowledge

is

the same to

him

as if it did not e:tist.

1

a

Which

is to say that

the

factor of uncertainty in law has little

bearing

on

practical affairs. Many men go on about their business


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LAW

AND TH

MODERN MIND

slightly affects what a

man

does, it is seldom that he can honestly

maintain that he was disadvantaged by lack of legal stability. Al

though, then, judges have made

law

vast quantities of

law and

judge-made innovations, retroactively applied, are devised yearly;

although frequently a man must act with no certainty as to what

legal consequences the courts will later attach to

his

acts; although

complete legal predictability

and

with it safety from slippery change

are therefore by no means

possible -

yet retroactivity

and

the result

ing unavoidable uncertainty are not as great practical evils as they

are often assumed to be.

The

no judge-made law doctrine, it seems,

is

not, fundamentally, a response to practical needs.

1

I t appears

rather

to be due to a

hunger

and a craving for a non-existent and

unattainable legal f inali ty- which, in turn, may

be

ascribed to a

concealed

but

potent striving to recapture

in

the law the child's

conception of the fatherly attributes.

But

what of it?

What harm

in this myth? No harm, if the denial

of

judicial law-making were a mere pleasantry, in the category of

what

Austin

and

Morris

Cohen

refer to as polite

or

euphemistic

fictions;

that

is statements contrary to fact, but known by all to

be

such

and

comparable to

the

fibs

of

daily social intercourse.

But

the denial of the fact of judge-made law is no mere

.fib.

At

times, indeed, it seems

to

resemble an outright benevolent lie, a

professional falsehood designed actually to deceive

t ~

laity for their

own good; Gray suggests that the misrepresentation derives in part

from a belief of the legal profession

that

it

is

important

that

judges

should say,

and th t the

people

should believe

that the rules according

to which the judges decide these cases had a previous existence. The

lay public,

that

is

arc to be duped.

Now

this dupery

is not

harmless. It leads, sooner

or

later, to a

distrust of the judges, a disrespect for their opinions.

For

now and

again

the

public becomes

aware

that in some actual cases the judges


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JUDICIAL LAW-MAKING

to

reply to such accusations when the judges themselves deny that

they have power to make law and yet go on (unavoidably and

un

.lllist2kably) making it.

Why, then, do the judges deceive the public? Because they are

themselves deceived.

The

doctrine of no judge-made law

is

not,

generally speaking, a l i e for a lie is

an

affirmation of a fact

contrary to the

truth,

made with knowledge of its falsity and with the

intention of deceiving others. Nor is it a " f ic t ion ' - a false af

firmation made with knowledge of its falsity but with

no

intention of

deceiving others.

It s

rather a m y t h - a false affirmation made without complete

knowledge

of

its falsity W c arc confronting a kind of deception

The

self-deception, of course, varies

degree; many judges and lawyers are half-aware that the denial

of the existence of judicial legislation is

what Gray

has called " a form

of words to hide the

truth.

11

And

yet most of the profession insists

thir.t the judiciary cannot properly change the law, and more or less

believes

that myth. When judges and lawyers announce that judges

an never validly make law, they are not engaged in fooling the

public; they have successfully fooled themselves.

And this self-delusion has led to

many

unfortunate results.

With

.

their thinking processes hampered by this myth, the judges haye been

forced,

as

we have seen, to contrive circumlocutions in order to con

.cui from themselves and the laity the fact that the judiciary fre

quently changes

the

old legal rules. Those evasive phrases are then

dealt with as if they were honest phrases, with consequent confusion

and befuddlement

of

thought. Legal fictions are mistaken for objec

tive legal truths and clear legal thinking becomes an

u n n e e ~ r i l y

arduous task.

This is not the place to discuss at length the immense importance

~ ~


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LAW AND THE MODERN MIND

character. It

is

often desirable to treat A

as

if it were B. Mathe

matics, for instance, finds it useful to employ the fiction that a circle is a

polygon; i.e. to

be

dealt with, for certain purposes, as if it were a

polygon. Medical thinking is aided by the fiction of the completely

healthy man. So

in

law, it is helpful at times to treat a corporation

as if,. for certain purposes, it were a real citizen, distinct and apart

from

its

flesh-and-blood stockholders, directors, officers, and

'agents.

15

But there are a vast number of so-called fictions which are really

bastard fictions or semi-myths, where the " as if " or let's

pretend

factor has, in some measure, been submerged. It

is

said, not that A

is to be treated for

certain purposes

" as if " it were B, but instead it

is said and believed, incorrectly, that A s B. While thinking is often

advanced by a valid fiction, it

is

hindered

when

a fiction becomes a

myth or

semi-myth;

i.e.

when the artificial character of the fiction,

its lack of literalness,

its

basically metaphorical significance, are in

whole or in part overlooked.*

The

law has suffered much from such bastard fictions or semi-myths.

Thus

we have such things

as

contracts implied in law. Now the

essence of a contract

is

that the parties to the contract consent

to

be

bound.

But

the essence of a so-called " contract implied in law is

that there is no consent. To

use

the word " contract " in the latter

case without constant awareness of the fact that 'one is speaking

metaphorically is to blur and obfuscate. What is actu:ai y meant

by

the phrase is that under certain circumstances the courts will compel

parties who have

not

made a contract to act "

as

if " they had made

a contract. The courts have often been led astray through a failure to

keep in mind the " as if " in that verbal construct.

In like manner, we have unfortunate consequences flowing from


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JUDICIAL

LAW-MAKING

is

absent, and malice

in

law where there is no malice what-

~

;fBecause of these semi-myths and a host of like verbalisms- often

~ o p e r l y referred to as legal fictions although they are em

artificiality- many

legal

critics have denounced all legal fictions

as

unmitigatedly evil.

am thought a legal fiction the

most

pernicious and basest sort

lying :

I t

affords,

he

wrote, presumptive and conclusive evidence

moral turpitude in those

by

whom it was invented and first em

without complete awareness of their artificiality- many

is translated into the language of truth. Burn the origi

and employ the translation

in its

stead. Fiction is no more

to justice, than is poison to sustenance. . Fictions are

and the judge who invents a fiction ought to be sent to

'

Swearing,' says one of the characters in a French drama,

constitutes the ground-work of English conversation.' Lying, he

have

said, without any such hyperbole

- ly ing

and

non

compose the ground-work of English Judicature

In

Eng

law, fiction is a syphilis which runs in every vein, and carries

every part of the system the principle of rottenness.

And more recently, Professor Jeremiah Smith has joined in this

The use of fiction,

he

asserts, tends not only to impair', in a

general way, reverence for truth; but also to diminish the respect

would otherwise

be

felt for the courts and for the law itself.

by

mere theor

{as; but by experienced lawyers and judges. We believe that, at

the present day, the use of fiction

in

law should be entirely abandoned.

I f

a fiction does not, in any degree

or

to any extent, represent

&.legal truth, then its continued

use

can result only in evil.

If,

on

other hand, it

represents-

in part at

l eas t -

some clumsily


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LAW AND

THE MODERN MIND

These

are strong words.

They

arc too sweeping. Neither in law

nor elsewhere could we afford to do away with fictional contrivances.

One

might

almost say

that

the capacity for sustained valid

as

if

thinking

is

the mark of the civilized man. Juridical theory, says

Tourtoulon pithily, is all the more objective when it presents itself

as fictitious,

and

all the more delusive

when

it claims to

do

without

fictions. To the extent that fictions are recognized as such, that their

as

if or let's pretend element

is

kept clear, that the omission

of qualifications from such abbreviated or metaphorical statements is

not

taken to mean the

permanent

irrelevance of such

qualifications-

just

to that extent fictional representations should

be

encouraged as

invaluable thought-tools. Objection properly arises only when the

partial, metaphorical, artificial character of the fiction

is overlooked

-when , that

is

the fiction becomes a myth

or

semi-myth.*

' Such misuse of the legal fiction has produced that fiction-phobia

among lawyers manifested in the condemnatory expressions of

Ben-

tham

and Smith. Justified in their assaults on bastard fictions, they have,

unfortunately, gone too far and have assailed valid fictions as well.'

Valid fictions are defensible

-more ,

they are indispensable. But

what s significant for

our

purposes is the defense of the bastard

fictions, the semi-myths.

To

Blackstone, they were

m e n ~

the cher

ished beauties of the

law.

To

Mitchell/'

it seems that the common

law is largely indebted to these verbal mechanisms for

its

rapid

development and its ability to follow closely social .needs. Why this

praise? Because, says Mitchell, these devices make less noticeable,

both to the

world and to

the judges themselves

(and

therefore more

easy) the legislation that is being accomplished by the judges.

11

Such judicial legislation he considers essential to the life of the law.

But no

less

essential, he contends, is the necessity of concealing

what

is going on. Wherefore to him these misleading, inaccurate

and


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JUDICIAL

LAW-MAKING

Stated thus baldly, how childish is such a defense: udges

must_

tinue to create law, but they and the public must

be

kept unaware

their accomplishment. Untruths must continue to

be

told to the

bitr

about the essential function of law, and law must continue to

e made by men befuddled by myths and only partially aware of

t they are doing. And why? Because, apparently, many full-

be laymen or lawyers, cannot bear to

the truth, and must

be

kept in a world of make-believe where

law of an adult

is

in spirit, of a kind with the authoritative rules laid down

by their father.

The genealogy of legal myth-making may be traced s follows:

that law

is

completely settled and defined

springs the subsidiary myth that judges never make law.

That

turn

is

the progenitor of a large brood of troublesome semi

One

is

reminded of Morley's comments with respect to a like

in Church

history:

" Subordinate error was made necessary and invented,

by

reason

Thus we are often referred to the consolation which

that doctrine has brought to the human spirit. But what if the

system had produced the terror which made absence of o ~

How much of the necessity for expressing the:

in the doctrine of Purgatory,

from the experience of the older, unsoftened doctrine of eternal

11

law and the modern mind by jerome frank

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