第24章

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 Ihave 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 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 "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 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 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, 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.