Document Type

Article

Publication Date

1910

Abstract

"The existence and the alteration of human institutions," says DICEY, "must in a sense, always and everywhere depend upon the beliefs or feelings, or, in other words, upon the opinion of the society in which such institutions flourish."1 Undoubtedly, law, as much as any other human institution, has felt this influence of public opinion. The political, economical and ethical ideals of a people find expression in their laws. True it is that public opinion is usually, if not always, in the lead, but in a truly happy and contented society the distance is never great. As MAINE says, in progressive societies "it may be laid down that social necessities and social opinions are always more or less in advance of the law. We may come indefinitely near to the closing of the gap between them but it has a perpetual tendency to reopen. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promtitude with which the gulf is narrowed."2 According to DICEY, this is less true of judge-made law than of statutes. Three reasons are assigned for this conclusion, (1) that judicial legislation, more than the enactments of the law-giving body, aims at the maintenance of the logic or symmetry of the law; (2) that it aims at securing the certainty, rather than at amending the deficiencies of the law; and (3) that, because of the age and training of our judges, the ideas of expediency or policy accepted by the courts may differ materially from the ideas "which, at a given time, having acquired predominant influence among the general public," guide the legislative body in making the statutes.3 Had he been writing with regard to our country instead of England, he might have added as a fourth reason, the peculiar influence which our express constitutional separation of powers-legislative, judicial and executive-may have upon our judges. It is not strange that under such a constitution judges should give more weight to precedent and consistency in reaching conclusions, even when they feel that such conclusions are not in accord with modem thinking, than they would under a system of government where the division between judicial and legislative powers is not so clearly marked. The natural result of such an express division of powers is to make the judiciary slow to render decisions which cause a marked change in the interpretation of laws and so have the practical effect of legislation-it has a tendency to compel care on the part of the judges lest they encroach upon the domain of the legislative body. Conceding that these reasons are effective and that judge-made law is less likely than statute law to be representative of public ideals and opinion, there is one very pertinent reason why this should be less true here than in England. In four-fifths, or more, of our states the judiciary is chosen periodically by popular election. Even though we may deplore this condition, we must concede that this method of choice affects the judge in like manner as it does the legislator, i.e., it tends to make his decisions coincide with public opinion in his section of the country. The different view-points of the typical English and American judges on this matter is well illustrated by the following quotations. Justice PARK, in his opinion in Mirehouse v. Rennell,4 said, "Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science." Here the emphasis is laid on uniformity and consistency. Compare with this the following extract from the opinion of Justice ELIOTT in Tuttle v. Buck,5 "It must be remembered that the common law is the result of growth and that its development has been determined by the social needs of the community which it governs. It is the resultant of conflicting social forces, and those forces which are for the time dominant leave their impress upon the law. It is of judicial origin, and seeks to establish doctrines and rules for the determination, protection, and enforcement of legal rights. Manifestly it must change as society changes and new rights are recognized. To be an efficient instrument, and not a mere abstraction, it must gradually adapt itself to changed conditions. Necessarily its form and substance have been greatly affected by prevalent economic theories." In this statement it is the adaptability to social needs that is emphasized. We may be, then, not unwarranted in expecting to find the decisions of our courts reflecting with a greater or less degree of faithfulness the economic and social ideals of the public. Will an examination of the American decisions on some one branch of the law justify this conclusion? Let us seek the answer to this question by a thorough consideration of the law of malicious torts. This particular subject is chosen for the field of our investigation for two reasons, first, because the law respecting it is almost entirely the product of judicial decision, and, second, because within this division of the field of law falls a large proportion of the cases dealing with business competition and the use of the boycott in disputes between labor and capital. These two questions are the subject of present public interest and a prolific source of recent litigation. Consequently the law relating to both of these matters has been developed largely within the last decade, and promises large future development, and for this reason, alone, is well suited to our purpose.


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