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better understood by reading some of the perspiring efforts of the Supreme Court of Oregon. Instead of dispensing with courts, this purer and directer democracy is going to force upon judicial tribunals greater so-called legislative duties than ever. Of course legislatures and the people have always the power to negative the future application of any judicial construction of a constitution, or a law, or any declaration of a common law principle, by amendment or new law.
The practical impossibility of making laws that are universally applicable to every case has thrown upon the courts the duty of supplying the deficiency either by construction of written laws or constructive application of the common law. This discretion of courts is guided and limited by judicial precedents. The precedents form a body of law called judge-made law by those who would attack it; but it is better to have judge-made law than no law at all. Indeed the curative and lubricating effect of this kind of law is what has made our popular governmental machinery work so smoothly and well. I cannot refer at length to the now much mooted question of the power of the courts to refuse to recognize legislative acts which are beyond the permissible discretion of the legislature in construing its own constitutional authority. I can only say that the power has been exercised for one hundred and twenty-five years and unless the courts continue to retain it, individual rights and every interest of all the people will come under the arbitrary discretion of a constantly changing plurality of the electorate to be exercised by varying and inconsistent decisions of successive elections.
But however necessary it is to entrust such discretion to the courts, we must recognize that its existence is made the basis for a general attack, by professed reformers of society, upon our judicial system, and that this attack is finding much sympathy among the people. There are good grounds for criticising our present administration of justice in the lax enforcement of the criminal law and in the high cost and lack of dispatch in civil litigation.
These defects are not all chargeable to the courts themselves, by any means. The lax administration of the criminal law is due
in a marked degree to the prevalence of maudlin sentiment among the people, and the alluring limelight in which the criminal walks if only he can give a little sensational coloring to his mean or sordid offense. Then the state legislatures, responding perhaps to a popular demand, and too often influenced by shallow but for the time being politically influential members of our own profession, devise every means to deprive the court of its power at common law to control the manner of trial and to assist the juries, but not to constrain them, to right conclusions. Codes of procedure of immense volume and exasperating detail keep litigants "pawing in the vestibule of justice" while the chance of doing real justice fades away. Then, too, unnecessary opportunity for appeals and writs of error and new trials is afforded by statute, and the litigant with the longest purse is given a great advantage. More than this, many questions that ought to be settled by administrative tribunals with proper authority have been thrust upon the courts. This has had two effects. It involves the courts in quasi-political and economic controversies that they ought not to be burdened with, and that necessarily expose them to criticism as being prejudiced. Second, it takes up the time of the courts in executive matters and delays dispatch of legitimate judicial work. The creation of the Interstate Commerce Commission, of state public utilities commissions, of boards of conciliation and arbitration in labor controversies, of commissions for fixing compensation for injured workmen, and of other executive agencies for the determination of issues involved in proper governmental regulation and exercise of the police power, are lifting much from the courts. Then our Association and many state associations are zealously and successfully working to induce legislatures and courts by statute and rules to simplify procedure and make it a vehicle of quick justice at little cost.
But the lax administration of the criminal law and the cost and delay of civil litigation are not the special objects of attack by social reformers. Their fire is directed against what they call the legislative power of the courts that I have described. This they contend is now being exercised to defeat measures es
sential to true social progress by reactionary judges. Let us trace out the reasons for this antagonism and perhaps in them we can find the true solution of the difficulty so far as there is any real substance in their complaint.
In the federal constitution there were embodied two great principles, first, that the government should be a representative popular government, in which every class in society, the members of which have intelligence to know what will benefit them, is given a voice in selecting the representatives who are to carry on the government and in determining its general policy. On the other hand, the same constitution exalts the personal rights and opportunities of the individual and prescribes the judicial machinery for their preservation, against the infringement by the majority of the electorate in whose hands was placed the direction of the executive and legislative branches of the government. The common law rule was followed, by which each individual was given independence in his action, so long as that independence did not infringe the independence of another. This has given the motive for labor, industry, saving and the sharpening of intellect and skill in the production of wealth and its re-use as capital to increase itself. The material expansion of our country, unprecedented in history, would have been utterly impossible without it. When the constitution was adopted, there was not only legal independence of the individual, but actual independence in his method of life, because he could and did. produce almost everything that was needed for his comfort in the then standard of living. We have now become a people with an immense urban population, far from the sources of necessary supply, and, therefore, we have become far more dependent on each other that life may go on and be enjoyed. While it is undoubtedly true that the living of the average individual is far more comfortable than it ever was, we have now reached a point in the progress of our material development when we are stopping to take breath and to take more account of those who are behind in the race. We are more sensitive to the inequality of conditions that exist among the people. We are pausing to inquire whether by governmental action, some changes cannot be made in
the legal relations between the social classes and in the amelioration of oppressive conditions affecting those who in the competition between individuals under existing institutions are receiving least advantage from the general material advance. It is essential that our material expansion should continue, in order to meet the demands of the growing population and to increase the general comfort. Were we to take away the selfish motive involved in private property we would halt, stagnate and then retrograde, the average comfort and happiness in society would be diminished, and those who are now in want would be poorer than ever. The trend of those who would improve society by collectivist legislation is toward increasing the functions of government, and one of the great difficulties they have to meet is provision for the rapidly increasing pecuniary burden that this entails. Municipalities and states that have attempted something of this kind are finding that their credit is exhausted and their tax resources are not sufficient. Whatever the changes, therefore, we must maintain, for the sake of society, our institutional system of individual reward, or little of the progress so enthusiastically sought can be attained. It is not alone constitutional restraints that limit thoughtless, unjust and arbitrary popular excesses, but also those of economic laws and the character of human nature, and these latter work with seemingly cruel inevitableness that ought to carry its useful lesson home.
The social reformers contend that the old legal justice consisted chiefly in securing to each individual his rights in property or contracts, but that the new social justice must consider how it can secure for each individual a standard of living and such a share in the values of civilization as shall make possible a full moral life. They say that legal justice is the removal of all those restrictions on the free action of an individual which are not necessary for securing the like freedom on the part of his neighbors, while social justice is the satisfaction of every one's wants so far as they are not outweighed by others wants. The change advocated by the social reformers is really that the object of law should be social interests and not individual interests. They unjustly assume that individual rights are held inviolate
only in the interest of the individual to whom such rights are selfishly important and not because their preservation benefits the community. On the contrary, personal liberty, including the right of property, is insisted upon because it conduces to the expansion of material resources which are plainly essential to the interests of society and its progress. We must continue to maintain it whether our aim is individualistic or social. As long as human nature is constituted as it is, this will be true. When only altruistic motives actuate men, it may be different.
But we must recognize the strong popular interest in the Sociological movement and realize the importance of giving it a practical and successful issue. We are not tied to the defects of the past, or present, and we ought to be anxious to guide the proposed reforms so that we shall secure all the good possible from them without ignoring the inestimable boon of experience we have inherited from centuries of struggle toward better things.
The Supreme Court of the United States has given many evidences of its appreciation of the changes in settled public opinion in respect to the qualification of individual rights by the needs of society. Its definition or rather lack of definition of the police power, and its proposed method of pricking out its limitations in accord with predominant public opinion, is an example. Indeed, many other instances of the infusion of social ideas into the law by construction of remedial statutes and by adjustment of common law principles to cases of social justice could be cited. It is noteworthy that this is most evident in the highest of our courts with judges of greatest experience, ability and learning in fundamental jurisprudence and of statesmanlike constructive faculty. It is through discrimination and farsighted legislators and through great and learned judges that we can safely and surely achieve the social changes and reforms within the practical range of enforceable law. It must be remembered that with men as they are, government and law cannot make every change in society, however desirable it may be. Law which is unenforceable or ineffective is worse than none. There are zones in the field of social relations in which progress can only be made by the