The Ideal Element in Law. Roscoe 1870-1964 Pound

found in interpretation. Interpretation has been thought of as including the process of finding or making rules for new cases or reshaping them for unusual cases considered above. This is called interpretation by a dogmatic fiction because in the analytical theory of the last century the law was complete and all cases were at least covered by the logical implications of pre-existing rules or the logical content of legal principles. Austin set it off under the name of “spurious interpretation.”⁵¹ Here the contact between law and morals is obvious since the process is in substance one of lawmaking. But in what Austin called “genuine interpretation”⁵²—search for the actual meaning of the one who prescribed a rule admittedly governing the case in hand—the final criterion, when literal meaning and context fail to yield a satisfactory construction, is found in the “intrinsic merit” of the various possible meanings.⁵³ The court or jurist assumes that the lawmaker’s ideal and that of the tribunal or the writer are in substantial accord; that each holds to the same ideal pattern of law or ideal picture, moral, political, or social, of the end of law. But the political and the social ideals have a predominant moral element. Thus, however much the analytical theory of “genuine interpretation” may purport to exclude the moral ideas of the court, and to insure a wholly mechanical logical exposition of a logically implied content of legal precepts, two doors are left open. The court must determine whether the criteria of the literal meaning of the words and of the text read with the context yield a “satisfactory” solution.⁵⁴ If the court finds they do not, it must inquire into the “intrinsic merit” of the competing interpretations. In practice “satisfactory” will almost always mean morally satisfactory. “Intrinsic merit” will always tend to mean intrinsic moral merit.⁵⁵

      Another point of contact is in the application of standards. Analytical jurists have liked to think of the application of legal precepts as a purely mechanical process. Such things as the margin of discretion in the application of equitable remedies, the appeal to the ethical in the maxims of equity, and the ethical element in such equitable doctrines as those with respect to hard bargains, mistake coupled with sharp practice, and the like, were distasteful to them. Partly under their influence and partly from the same spirit of the maturity of law that led to the analytical way of thinking, in the last quarter of the nineteenth century, some American courts sought to eliminate, or at least minimize the scope of these doctrines and to make equitable relief, once jurisdiction was established, as much a matter of course as damages at law.⁵⁶ But this equitable or individualized application of legal precepts is called for more and more in the law of today. It is the life of administration, whether executive or judicial. The lack of power of individualization in judicial administration in the nineteenth century has contributed to a multiplication of administrative agencies and tribunals and a transfer to them of matters formerly of judicial cognizance which is sufficient testimony to the futility of the attempt in the last century to make the courts into judicial slot machines.⁵⁷

      In fact, the ethical element in application of law was never excluded from the actual administration of justice.⁵⁸ It will suffice to note two aspects of application of law in which the ethical element has always been decisive: The application of legal standards and judicial exercise of discretion. A great and increasing part of the administration of justice is achieved through legal standards. These standards begin to come into the law in the state of infusion of morals through theories of natural law.⁵⁹ They have to do with conduct and have a large moral element. The standard of due care in the law of negligence, the standard of fair competition, the standard of fair conduct of a fiduciary, the Roman standard of what good faith demands in a particular transaction, the Roman standard of use by a prudent usufructuary and of how a prudent and diligent head of a household (i.e., person sui juris) would act under the given circumstances, all involve an idea of fairness or reasonableness. Like all moral precepts they are individualized in their application. They are not applied mechanically to a set of facts looked at in the abstract. They are applied according to the circumstances of each case, and within wide limits are applied through an intuition of what is just and fair, involving a moral judgment upon the particular item of conduct in question.⁶⁰

      No less clearly there is a point of contact between law and morals in matters which are left to the discretion of the court. In cases where there is a margin of discretion in the application of legal precepts, as in applying or molding equitable remedies, we speak of “judicial discretion.” Here there are principles (i.e., starting points for reasoning) governing judicial action within the discretionary margin of application, although at bottom there is not a little room for personal moral judgment.⁶¹ There are many situations, however, where the course of judicial action is left to be determined wholly by the judge’s individual sense of what is right and just.⁶² The objections to any considerable scope for this element in the judicial process are obvious.⁶³ It has been said it is “the law of tyrants.”⁶⁴ But hard as we tried in the last century to reduce it to the vanishing point, there proved to be a point beyond which rule and mechanical application are impotent. The tendency today is to extend rather than to restrict its scope. We must find how to make it tolerable. The history of Anglo-American equity shows this may be done by developing through experience principles of exercise of discretion and recognizing that because there is no rule in the strict sense it does not follow that a tribunal must have unlimited power of doing what it chooses. It is to reach a reasoned decision in the light of those principles. As Kelsen has pointed out, when a legal precept leaves some matter to discretion, if the ground of decision lies outside of the body of authoritative guides to decision (law in the second sense) it does not lie outside of the legal order (law in the first sense).⁶⁵

      In the analytical account of the points of contact between law and morals the matter is put as if there were three or four restricted areas in which exceptionally such contact may take place.⁶⁶ Occasionally it may happen that a case arises for which there is no applicable legal precept and the court must work one out for the case from the legal materials at hand by a certain traditional technique of analogical development of the precedents. Occasionally, too, it may happen that an authoritatively established legal precept is so ill expressed that genuine interpretation becomes necessary. In this process it may happen that as a last resort the court must pass upon the relative merit of the several possible interpretations from an ethical standpoint. Also in those exceptional cases for which ordinary legal remedies are not adequate, a court of equity may have a certain margin of power to go upon the moral aspects of a case in granting or denying extraordinary relief. In a few matters there are “mixed questions of law and fact” where the trier of fact, in adjusting a legal standard to the facts of a particular case, may find opportunity for an incidental moral judgment. Finally some matters of administration must be left more or less to the court’s personal sense of what is right. All this is put as if in its everyday course judicial justice was quite divorced from ideas of right and morals, with intrusion of morals into the legal domain only in a residuum of cases for which adequate provision had not been made, or in which an administrative element still lingered in the courts instead of being committed to the executive. But this plausible account represents juristic desire for a certain uniform, predictable justice much more than it represents the judicial process in action. In appellate tribunals the difficulty that brings the cause up for review is usually that legal rules and legal conceptions have to be applied by analogy to causes that depart from the type for which the precept was devised or given shape. Such departures vary infinitely. Hence choice from among competing analogies and choice from among competing modes of analogical development are the staple of judicial opinions.⁶⁷ The line between “genuine” and “spurious” interpretation can be drawn only for typical cases. They shade into one another and a wide zone between them is the field in which a great part of appellate decision must take place. Likewise the extraordinary relief given by courts of equity has become the everyday form of justice for large classes of controversies and legislation has been adding new classes.⁶⁸ Moreover, transition to an urban, industrial society has called increasingly for administrative justice and tribunals with flexible procedure and wide powers of discretionary action have been set up everywhere in increasing number. In fact, there are continual points of contact with morals at every turn in the ordinary course of the judicial process. A theory which ignores them or pictures them as few and of little significance is not a theory of the actual law in