Part 2 (2/2)

where the chancellor in his discretion may deny specific performance.

In England and in several states the damages at law do not include the value of the bargain where the contract is for the sale of land. Hence unless specific performance is granted, the plaintiff's legal right is defeated. It is notorious that bargains appeal differently to different chancellors in this respect. In the hands of some the doctrine as to hard bargains has a tendency to become wooden, as it were. There is a hard and fast rule that certain bargains are ”hard”

and that equity will not enforce them. In states where the value of the bargain may be recovered at law, it may well be sometimes that the bargain might as well be enforced in equity, if it is not to be cancelled. But the chancellor is not unlikely to wash his hands of a hard case, saying that the court of law is more callous; let that court act, although that court is the same judge with another docket before him. In other hands, the doctrine tends to become ultro-ethical and to impair the security of transactions. In other words, the margin of discretion in application of equitable remedies tends on the one hand to disappear through crystallization of the principles governing its exercise into rigid rules, or on the other hand, to become overpersonal and uncertain and capricious. Yet as one reads the reports attentively he cannot doubt that in action it is an important engine of justice; that it is a needed safety valve in the working of our legal system.

At common law the chief reliance for individualizing the application of law is the power of juries to render general verdicts, the power to find the facts in such a way as to compel a different result from that which the legal rule strictly applied would require. In appearance there has been no individualization. The judgment follows necessarily and mechanically from the facts upon the record. But the facts found were found in order to reach the result and are by no means necessarily the facts of the actual case. Probably this power alone made the common law of master and servant tolerable in the last generation. Yet exercise of this power, with respect to which, as Lord c.o.ke expressed it, ”the jurors are chancellors,” has made the jury an unsatisfactory tribunal in many cla.s.ses of cases. It is largely responsible for the practice of repeated new trials which makes the jury a most expensive tribunal. The crude individualization achieved by juries, influenced by emotional appeals, prejudice and the peculiar personal ideas of individual jurors, involves quite as much injustice at one extreme as mechanical application of law by judges at the other extreme. Indeed the unchecked discretion of juries, which legislation has brought about in some jurisdictions, is worse than the hobbled court and rigid mechanical application of law from which it is a reaction.

Our administration of punitive justice is full of devices for individualizing the application of criminal law. Our complicated machinery of prosecution involves a great series of mitigating agencies whereby individual offenders may be spared or dealt with leniently. Beginning at the bottom there is the discretion of the police as to who and what shall be brought to the judicial mill. Next are the wide powers of our prosecuting officers who may ignore offences or offenders, may dismiss proceedings in their earlier stages, may present them to grand juries in such a way that no indictment results, or may enter a _nolle prosequi_ after indictment.

Even if the public prosecutor desires to prosecute, the grand jury may ignore the charge. If the cause comes to trial, the pet.i.t jury may exercise a dispensing power by means of a general verdict. Next comes judicial discretion as to sentence, or in some jurisdictions, a.s.sessment of punishment by the discretion of the trial jury. Upon these are superposed administrative parole or probation and executive power to pardon. The lawyer-politician who practices in the criminal courts knows well how to work upon this complicated machinery so as to enable the professional criminal to escape as well as those or even instead of those for whom these devices were intended. They have been developed to obviate the unhappy results of a theory which would have made the punishment mechanically fit the crime instead of adjusting the penal treatment to the criminal. Here, as elsewhere, the attempt to exclude the administrative element has brought about back-handed means of individualization which go beyond the needs of the situation and defeat the purposes of the law.

Even more striking is the recrudescence of personal government, by way of reaction from an extreme of government of laws and not of men, which is involved in the setting up of administrative tribunals on every hand and for every purpose. The regulation of public utilities, apportionment of the use of the water of running streams among different appropriators, workmen's compensation, the actual duration and nature of punishment for crime, admission to and practice of professions and even of trades, the power to enter or to remain in the country, banking, insurance, unfair compet.i.tion and restraint of trade, the enforcement of factory laws, of pure food laws, of housing laws and of laws as to protection from fire and the relation of princ.i.p.al and agent, as between farmers and commission merchants, are but some of the subjects which the living law, the law in action, is leaving to executive justice in administrative tribunals. To some extent this is required by the increasing complexity of the social order and the minute division of labor which it involves. Yet this complexity and this division of labor developed for generations in which the common-law jealousy of administration was dominant. Chiefly our revival of executive justice in the present century is one of those reversions to justice without law which are perennial in legal history. As in the case of like reversions in the past it is the forerunner of growth. It is the first form of reaction from the overrigid application of law in a period of stability. A bad adjustment between law and administration and c.u.mbrous, ineffective and unbusinesslike legal procedure, involving waste of time and money in the mere etiquette of justice, are doing in our time what like conditions did in English law in the middle of the sixteenth century.

If we look back at the means of individualizing the application of law which have developed in our legal system, it will be seen that almost without exception they have to do with cases involving the moral quality of individual conduct or of the conduct of enterprises, as distinguished from matters of property and of commercial law. Equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence have been reposed. Legal standards are used chiefly in the law of torts, in the law of public utilities and in the law as to fiduciary relations.

Jury lawlessness is an agency of justice chiefly in connection with the moral quality of conduct where the special circ.u.mstances exclude that ”intelligence without pa.s.sion” which, according to Aristotle, characterizes the law. It is significant that in England today the civil jury is substantially confined to cases of defamation, malicious prosecution, a.s.sault and battery and breach of promise of marriage.

Judicial individualization through choice of a rule is most noticeable in the law of torts, in the law of domestic relations and in pa.s.sing upon the conduct of enterprises. The elaborate system of individualization in criminal procedure has to do wholly with individual human conduct. The informal methods of petty courts are meant for tribunals which pa.s.s upon conduct in the crowd and hurry of our large cities. The administrative tribunals, which are setting up on every hand, are most called for and prove most effective as means of regulating the conduct of enterprises.

A like conclusion is suggested when we look into the related controversy as to the respective provinces of common law and of legislation. Inheritance and succession, definition of interests in property and the conveyance thereof, matters of commercial law and the creation, incidents and transfer of obligations have proved a fruitful field for legislation. In these cases the social interest in the general security is the controlling element. But where the questions are not of interests of substance but of the weighing of human conduct and pa.s.sing upon its moral aspects, legislation has accomplished little. No codification of the law of torts has done more than provide a few significantly broad generalizations. On the other hand, succession to property is everywhere a matter of statute law and commercial law is codified or codifying throughout the world. Moreover the common law insists upon its doctrine of _stare decisis_ chiefly in the two cases of property and commercial law. Where legislation is effective, there also mechanical application is effective and desirable. Where legislation is ineffective, the same difficulties that prevent its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the Roman law, and especially by the modern Roman law, to so many questions of fault, where the question is really one of good faith. All attempts to cut down this margin have proved futile. May we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules? Is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our a.s.surance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life?

Philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. Bergson tells us that the former is more adapted to the inorganic, the latter more to life. Likewise rules, where we proceed mechanically, are more adapted to property and to business transactions, and standards; where we proceed upon intuitions, are more adapted to human conduct and to the conduct of enterprises. According to him, intelligence is characterized by ”its power of grasping the general element in a situation and relating it to past situations,” and this power involves loss of ”that perfect mastery of a special situation in which instinct rules.” In the law of property and in the law of commercial transactions it is precisely this general element and its relation to past situations that is decisive. The rule, mechanically applied, works by repet.i.tion and precludes individuality in results, which would threaten the security of acquisitions and the security of transactions. On the other hand, in the handmade, as distinguished from the machine-made product, the specialized skill of the workman gives us something infinitely more subtle than can be expressed in rules. In law some situations call for the product of hands, not of machines, for they involve not repet.i.tion, where the general elements are significant, but unique events, in which the special circ.u.mstances are significant. Every promissory note is like every other. Every fee simple is like every other. Every distribution of a.s.sets repeats the conditions that have recurred since the Statute of Distributions. But no two cases of negligence have been alike or ever will be alike. Where the call is for individuality in the product of the legal mill, we resort to standards. And the sacrifice of certainty in so doing is more apparent than actual. For the certainty attained by mechanical application of fixed rules to human conduct has always been illusory.

IV

Liability

A systematist who would fit the living body of the law to his logical a.n.a.lytical scheme must proceed after the manner of Procrustes. Indeed, this is true of all science. In life phenomena are unique. The biologist of today sometimes doubts whether there are species and disclaims higher groups as more than conveniences of study. ”Dividing lines,” said a great American naturalist, ”do not occur in nature except as accidents.” Organization and system are logical constructions of the expounder rather than in the external world expounded. They are the means whereby we make our experience of that world intelligible and available. It is with no illusion, therefore, that I am leading you to a juristic _ultima Thule_ that I essay a bit of systematic legal science on a philosophical basis. Even if it never attains a final system in which the law shall stand fast forever, the continual juristic search for the more inclusive order, the continual juristic struggle for a simpler system that will better order and better reconcile the phenomena of the actual administration of justice, is no vain quest. Attempts to understand and to expound legal phenomena lead to generalizations which profoundly affect those phenomena, and criticism of those generalizations, in the light of the phenomena they seek to explain and to which they give rise, enables us to replace them or modify them or supplement them and thus to keep the law a growing instrument for achieving expanding human desires.

One of the stock questions of the science of law is the nature and system and philosophical basis of situations in which one may exact from another that he ”give or do or furnish something” (to use the Roman formula) for the advantage of the former. The cla.s.sical Roman lawyer, thinking in terms of natural law, spoke of a bond or relation of right and law between them whereby the one might justly and legally exact and the other was bound in justice and law to perform.

In modern times, thinking, whether he knows it or not, in terms of natural rights and by derivation of legal rights, the a.n.a.lytical jurist speaks of rights _in personam_. The Anglo-American lawyer, thinking in terms of procedure, speaks of contracts and torts, using the former term in a wide sense. If pressed, he may refer certain enforceable claims to exact and duties of answering to the exaction to a Romanist category of quasi-contract, satisfied to say ”quasi”

because on a.n.a.lysis they do not comport with his theory of contract, and to say ”contract” because procedurally they are enforced _ex contractu_. Pressed further, he may be willing to add ”quasi tort” for cases of common-law liability without fault and workmen's compensation--”quasi” because there is no fault, ”tort” because procedurally the liability is given effect _ex delicto_. But cases of duties enforceable either _ex contractu_ or _ex delicto_ at the option of the pleader and cases where the most astute pleader is hard pushed to choose have driven us to seek something better.

Obligation, the Roman term, meaning the relation of the parties to what the a.n.a.lytical jurists have called a right _in personam_ is an exotic in our law in that sense. Moreover the relation is not the significant thing for systematic purposes, as is shown by civilian tendencies in the phrases ”active obligation” and ”pa.s.sive obligation”

to extend the term from the relation to the capacity or claim to exact and duty to answer to the exaction. The phrase ”right _in personam_”

and its co-phrase ”right _in rem_” are so misleading in their implications, as any teacher soon learns, that we may leave them to the textbooks of a.n.a.lytical jurisprudence. In this lecture, I shall use the simple word ”liability” for the situation whereby one may exact legally and the other is legally subjected to the exaction.

Using the word in that sense, I shall inquire into the philosophical basis of liability and the system of the law on that subject as related to that basis. Yellowplush said of spelling that every gentleman was ent.i.tled to his own. We have no authoritative inst.i.tutional book of Anglo-American law, enacted by sovereign authority, and hence every teacher of law is ent.i.tled to his own terminology.

So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, ”Buy spear from side or bear it,” that is, buy off the feud or fight it out. One who does an injury or stands between an injured person and his vengeance, by protecting a kinsman, a child or a domestic animal that has wrought an injury, must compound for the injury or bear the vengeance of the injured. As the social interest in peace and order--the general security in its lowest terms--comes to be secured more effectively by regulation and ultimate putting down of the feud as a remedy, payment of composition becomes a duty rather than a privilege, or in the case of injuries by persons or things in one's power a duty alternative to a duty of surrendering the offending child or animal. The next step is to measure the composition not in terms of the vengeance to be bought off but in terms of the injury. A final step is to put it in terms of reparation. These steps are taken haltingly and merge into one another, so that we may hear of a ”penalty of reparation.” But the result is to turn composition for vengeance into reparation for injury. Thus recovery of a sum of money by way of penalty for a delict is the historical starting point of liability.

One's neighbor whom one had injured or who had been injured by those whom one harbored was not the only personality that might desire vengeance in a primitive society. One might affront the G.o.ds, and by one's impiety in so doing might imperil the general security, since the angered G.o.ds were not unlikely to hit out indiscriminately and to cast pestilence or hurl lightning upon just and unjust alike in the community which harbored the impious wrongdoer. Hence if, in making a promise, one called the G.o.ds to witness it was needful that politically organized society, taking over a field of social control exercised by the priesthood, give a legal remedy to the promisee lest he invoke the aid of the G.o.ds and jeopardize the general security.

Again in making a promise one might call the people or the neighborhood to witness and might affront them by calling them to witness in vain. Here, too, the peace was threatened and politically organized society might give a remedy to the promisee, lest he invoke the help of his fellow citizens or his neighbors. A common case might be one where a composition was promised in this way for an injury not included in the detailed tariff of compositions that is the staple of ancient ”codes.” Another common case was where one who held another's property for some temporary purpose promised to return it. Such a case is lending; for before the days of coined money, the difference between lending a horse to go to the next town and lending ten sheep to enable the borrower to pay a composition is not perceptible. Thus another starting point of liability is recovery of a thing certain, or what was originally the same, a sum certain, promised in such wise as to endanger the general security if the promise is not carried out. In Roman law, the condiction, which is the type of actions _in personam_, and thus the starting point historically of rights _in personam_ and of theories of obligation, was at first a recovery of a thing certain or a sum certain due upon a promise of this sort. In juristic terms, the central idea of the beginnings of liability is duty to make composition for or otherwise avert wrath arising from the affronted dignity of some personality desirous of vengeance, whether an injured individual, a G.o.d or a politically organized society. Greek law and Roman law give the name of ”insult” to legally cognizable injury to personality. Insult to a neighbor by injury to him or to one of his household, insult to the G.o.ds by impious breach of the promise they had witnessed, insult to the people by wanton disregard of the undertaking solemnly made in their presence, threatened the peace and order of society and called for legal remedy.

Lawyers begin to generalize and to frame conscious theories in the later part of the stage of the strict law. At first these theories are a.n.a.lytical rather than philosophical. The attempt is to frame general formulas by which the rigid rules of the strict law may be reconciled where they overlap or conflict or may be distinguished in their application where such overlapping or conflict threatens. By this time, the crude beginnings of liability in a duty to compound for insult or affront to man or G.o.ds or people, lest they be moved to vengeance, has developed into liability to answer for injuries caused by oneself or done by those persons or those things in one's power, and liability for certain promises made in solemn form. Thus the basis of liability has become twofold. It rests on the one hand upon duty to repair injury. It rests on the other hand upon duty to carry out formal undertakings. It is enough for this stage of legal development that all cases of liability may be referred to these two types and that useful distinctions may be reached therefrom. Consideration of why one should be held to repair injury, and why he should be held to formal undertakings, belongs to a later stage.

Juristic theory, beginning in the transition from the strict law to the stage of equity or natural law, becomes a force in the latter stage. As the relations with which the law must deal become more numerous and the situations calling for legal treatment become more complicated, it is no longer possible to have a simple, definite, detailed rule for every sort of case that can come before a tribunal, nor a fixed, absolute form for every legal transaction. Hence, under the leaders.h.i.+p of philosophical jurists, men turn to logical development of the ”nature” or ideal form of situations and to ethical ideas of what ”good faith” or ”good conscience” demands in particular relations or transactions. The strict law, relying on rule and form, took no account of intention as such. The words took effect quite independently of the thought behind them. But as lawyers began to reflect and to teach something more than a cla.s.s or professional tradition, as they began to be influenced by philosophy to give over purely mechanical methods and to measure things by reason rather than by arbitrary will, emphasis s.h.i.+fted from form to substance; from the letter to the spirit and intent. The statute was thought of as but the lawmaker's formulation of a principle of natural law. It was not the _uerba_ that were efficacious, as in the strict law, which had inherited the primitive faith in the power of words and thought of the legal formula as if it were a formula of incantation possessing inherent magical force. It was the _ratio iuris_, which transcended words and formulas. So also the traditional rule was not a magic formula discovered by our fathers. It was a customary expression of a principle of natural law. Likewise the formal transaction was not a bit of private magic employed to conjure up legal liability. It was the clothing in legally recognized vestments of an intention to do what reason and good faith demand in a given situation. When form and intention concurred the promisor must answer for what he undertook.

When the form used did not express or went beyond the intention or was the product of an apparent but not a real intention, the promisee was not to be enriched unjustly at the promisor's expense on the sole basis of the form. Moreover the duty was to be one of doing what good faith demanded, not one of doing literally and exactly what the letter of the undertaking called for. And although there was no express undertaking, there might be duties implied in the relation or situation or transaction, viewed as one of good faith, and one might be held to a standard of action because an upright and diligent man, who was his own master, would so act. Such is the mode of thinking in the cla.s.sical period of the Roman law and it is closely paralleled by an independent development of juristic thought in the rise of equity and the absorption of the law merchant in our law.

It was easy to fit the two categories, delict and formal undertaking, which had come down from the strict law, into the new mode of thought.

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