Judicial Decision… Within The United States Constitutional System
By JUDE P. DOUGHERTY
Statutes are created by decisions of legislative bodies, but the power of the courts to interpret statutes is in effect the power to remake them. In a memorable passage, though one that I have not been able to trace to its precise source, the Episcopal eighteenth-century Bishop Benjamin Hoadly said, “Whoever has the authority to interpret written or spoken laws is he who is truly the law giver to all intents and purposes, and not he who first wrote and spake them.”
The recognition of the element of interpretation introduces a number of questions pertinent to interpretation. Do extra legal principles or considerations rightfully play any part in decision making? Is there a basis for interpretation independent of legislative intent?
These are important questions at any time, but they take on a kind of urgency when social structures are in a state of flux, and when time-honored customs and mores are in question, and when institutions previously effective in defense of inherited norms are impotent. As the West seems to be passing from a Christian past into a secular future, with public values in transition, it is expected that conceptions of law, its fundamental source, and its scope will be crucial. No one denies that judicial decisions have social effects.
Whether one agrees with Plato that the function of law is to make men good, the laws enacted or reshaped through judicial decision do in fact shape men’s consciences. Some theories of law require the judge to exercise considerable restraint; others would give him untrammeled freedom in the employment of his judgment.
The danger present in the latter is manifest. It does not take much imagination to envision the law under the influence of certain social theories becoming hostile to family, to private education, to religion, and to desirable aesthetic goods, especially when the latter are to be purchased at the expense of individual freedom.
Given the importance of the judiciary in both English-speaking common-law traditions and Continental code traditions, I propose to examine three types of legal theory on the topic of judicial decision making.
The three theories exist in a pure form only in textbooks. One goes by the name of legal positivism, another is known as sociological or American realism, and the third as the classical natural law outlook.
The first is associated with the name of John Austin in the nineteenth century and in the twentieth with H.L.A. Hart.
The second is the philosophy of Oliver Wendell Holmes, Roscoe Pound, Benjamin Cardoza, and Louis Brandeis, which in the lifetime of many readers has moved from a theory, abstractly considered, to the work-a-day philosophy of courts at all levels in the United States.
The third is the natural law tradition represented by Aristotle, Cicero, and Aquinas in antiquity, and in the period preceding the American Revolution by Richard Hooker and John-Jacques Burlamaqui, and, in recent years prominently by John Finnis and Russell Hittinger.
Positivism and what we are calling “American realism” both eschew a metaphysical grounding of legal principle. According to Austin, law is that which is decreed by legislatures and courts, promulgated and enforced. The legislature is the most important body, in Austin’s view. Sovereign in a way in which the courts are not, it is free not only with respect to limitations imposed ab extra, but also free from prior legislation.
Fundamental to the legal positivism espoused by Austin is the notion that law represents rules embraced by the community as a whole for the purpose of proscribing certain types of behavior. Valid legal rules can be distinguished from the spurious and from mere custom by examining their pedigree. If their adoption is deliberate and compliance is enforced through sanctions dependent on public power, then the rule must be regarded as civil law. The law of any community is to be identified exclusively with the rules so tested. If a case is not covered by such a rule, the case cannot be settled by applying the law.
To affirm that one has a legal obligation is to say that his obligation is mandated by a given legal rule. In the absence of a valid legal rule, there is no obligation. What some may think is required by morality is not required by law.
Hart finds repugnant the idea that there is unlegislated law. He finds equally unacceptable the idea that legislated law which conflicts with moral law is not genuine law. Like many in the positivist tradition he was disturbed by the Nuremberg trials that followed the close of World War II, where moral principles prevailed.
At that time, a fear shared by many was that the International Military Tribunal created by the victorious Allies in the London Declaration might resort to ex post facto law. There was no precedent for an international trial, and certainly no statute proscribing “crimes against humanity.” In the end, Hart was forced to concede that the concept “international law” is best understood as “international morality.”
A strikingly different attitude prevails among those who subscribe to the principle of legal activism typical of the American realist school. If we take Oliver Wendell Holmes as representative of legal realism, we may note that Holmes’ theory of judicial decision-making is roughly John Dewey’s instrumentalist view of human reason.
According to this view, the judge in ruling does not draw conclusions in the light of general principles. Rather, he starts with a problematic, often confused situation. The process of clarification involves sorting out multiple issues. With a clear delineation of the problem, possible solutions suggest themselves. From this point of view, law is the product of an experimental process, not confined to an enacted statute; it is, as Bishop Hoadly saw, that which is ruled to be so by a judge.
Viewed from a different angle, it seems reasonable to hold that a judge, in interpreting a statute, should take into consideration not only legislative intent, but the best interests of the community, insofar as these are known to him through the aid of the relevant social sciences. The relevant social sciences — therein lay the danger!
To the legal realist, law is the means utilized by society for the achievement of certain definable social ends, statutes notwithstanding. Thus understood, law becomes a means of social engineering. In the words of the Australian legal theorist, Wolfgang Friedman, “Law is a flexible instrument of the social order; it is dependent upon the political values of the society it purports to regulate.”
The third position to be considered is the time-transcending natural law outlook associated with the names of Aristotle, the Stoics and Aquinas, and in the last century prominently defended in the American context by Jacques Maritain, Yves Simon, and John Courtney Murray.
As a position, it presupposes the intelligibility of nature. With the Greek mind, it recognizes order in nature. It finds that there are identifiable essences or natures, things or structures, with purposeful tendencies that can only be attributed to intelligence. The Greeks attributed the intelligibility of nature variously to an ultimate efficient cause, to an ultimate final cause, or to a summum bonum.
It was taken for granted that human intelligence is not limited to sensory observation, that the human intellect is powerful enough to ferret out the secrets of nature. The Christian Middle Ages found no difficulty in attributing the order found in nature to a creative God.
The issue which produces the positivist/natural law divide is an epistemological one, a metaphysical one. If knowledge is limited to sense perception and there is no evidence for the existence of God, an appeal to a divinely established order is without warrant. If morality is unaccountable to a natural order, it tends to become subjective, vulnerable to transitory political pressure or to the power of a mob.
An insight that may be drawn from these reflections is one reinforced by experience. The competition of special-interest groups in the legislature is less a danger to solid legislation than an activist court pursuing certain ideological goals in opposition to the good sense of the people.