[author]ROSCOE POUND

[content]

LAW IN BOOKS AND LAW IN ACTION

ROSCOE POUND

When Tom Sawyer and Huck Finn had determined to rescue Jim by digging under the cabin where he was confined, it seemed to the uninformed lay mind of Huck Finn that some old picks the boys had found were the proper implements to use. But Tom knew better. From reading he knew what was the right course in such cases, and he called for case-knives. "It don't make no difference," said Tom, "how foolish it is, it's the right way—and it's the regular way. And there ain't no other way that ever I heard of, and I've read all the books that gives any information about these things. They always dig out with a case-knife." So, in deference to the books and the proprieties, the boys set to work with case-knives. But after they had dug till nearly midnight and they were tired and their hands were blistered, and they had made little progress, a light came to Tom's legal mind. He dropped his knife and, turning to Huck, said firmly, "Gimme a case-knife." Let Huck tell the rest:

"He had his own by him, but I handed him mine. He flung it down and says, 'Gimme a case-knife.'

"I didn't know just what to do—but then I thought. I scratched around amongst the old tools and got a pickaxe and give it to him, and he took it and went to work and never said a word.

"He was always just that particular. Full of principle."

Tom had made over again one of the earliest discoveries of the law. When tradition prescribed case-knives for tasks for which pickaxes were better adapted, it seemed better to our forefathers, after a little vain struggle with case-knives, to adhere to principle—but use the pickaxe. They granted that law ought not to change. Changes in law were full of danger. But, on the other hand, it was highly inconvenient to use case-knives. And so the law has always managed to get a pickaxe in its hands, though it steadfastly demanded a case-knife, and to wield it in the virtuous belief that it was using the approved instrument.

It is worthwhile to recall some of the commonplaces of legal history by way of illustration. One of the first difficulties encountered by archaic legal systems founded upon the family and postulating for every sort of legal, social and religious institution, the continuity of the household, was the failure of issue, the want of the son to perpetuate the household worship whom religious and legal dogmas required. No one thought of superseding these dogmas, but their manifest inconvenience and injustice were avoided by the device of adoption. Presently a better way of disposing of property after death, without infringing upon ancient doctrines, occurred to some Roman. Why not sell his whole household and estate to the person upon whom he desired it to devolve? But if he so sold it, and the purchaser was an honorable man, the latter would carry out oral instructions at the time of the transfer as to the purpose for which it was made and the disposition to be made of the property. After this had gone on till every one had begun to employ the proceeding, a law of the Twelve Tables gave legal efficacy to the oral instructions, when the form of sale was had, and wills had come into being.A better example is to be seen in the Roman law of marriage. The religious marriage, which was the only one recognized by religion and hence by law, was not open to the plebeian. In consequence he did not have his wife in manus or his children in potestas, and his household had no standing before the law. The law was not altered. It was not enacted that there might be marriage without a wife in manus and a family without children in potestas, but purchase or adverse possession and the statute of limitations were resorted to in order to bring the plebeian's wife into manus in another way.

Our own law furnishes many such instances. When the Anglo-Saxon king desired to extend the protection of his peace to someone, he took him by the hand publicly and made of him, for legal purposes, a minister or servant entitled to the king's peace which attached to members of his household. When wager of law had made the action of debt a worthless remedy upon simple contracts, wager of law was not abolished, but the courts found a trespass and a breach of the king's peace in failure to perform a promise, if only something had been given presently in exchange for it, and thus imposed upon our law of contracts the formality of a consideration. When the delay and formalism of real actions and the incident of trial by battle made them inadequate remedies, a fictitious lease and fictitious ejectment were resorted to in order to make another remedy meet the situation. When the hard and fast form of writ and declaration failed to provide for new cases of conversion of a plaintiff's property, the form was not altered, but the loss and finding were assumed from the conversion; so that we are able to read in an American report of the nineteenth century that the plaintiff casually lost one hundred freight cars and the defendant casually found them and converted them to its own use, as if it were a watch or a pocket book that had been lost.

We are by no means so much wiser than our fathers as we sometimes assume. While we have few of the old fictions of procedure left, we can make new ones of our own upon occasion in the like spirit. The mode of reading bills to some of our state legislatures pursuant to constitutional requirements is in every way worthy to go down in history with ac etiam and quo minus. The doctrine of the presumed citizenship of stockholders of corporations, and hence of the corporations, for purposes of suit in the Federal courts, is worthy of the courts that found a breach of the king's peace in fraud and deceit.

It is not of fictions of themselves that I would speak. They soon get into the books and become part of the law as it is written. They mark where there was once a distinction between law in the books and law in action, and show one way in which the two have been brought into accord. They show where and how legal theory has yielded to the pressure of lay ideas and lay conduct. The current divergencies are not yet so marked. They escape notice. The fictions that are to mark them for future generations of jurists are in the making. But if we look closely, distinctions between law in the books and law in action, between the rules that purport to govern the relations of man and man and those that in fact govern them, will appear, and it will be found that today also the distinction between legal theory and judicial administration is often a very real and a very deep one.

1. Constitutional Law and Social Legislation

Let us take a few examples. It is a settled dogma of the books that all doubts are to be resolved in favor of the constitutionality of a statute—that the courts will not declare it in conflict with the constitution unless clearly and indubitably driven to that conclusion. But it can not be maintained that such is the actual practice, especially with respect to social legislation claimed to be in conflict with constitutional guaranties of liberty and property. The mere fact that the Court of Appeals of New York and the Supreme Court of the United States differed on such questions as the power to regulate hours of labor on municipal and public contracts, and the power to regulate the hours of labor of bakers, the former holding adversely to the one and upholding the other, while the latter court had already ruled the opposite on the first question and then reversed the ruling of the New York court on the second4, speaks for itself.

Many more instances might be noted. But it is enough to say that any one who studies critically the course of decision upon constitutional questions in a majority of our state courts in recent years must agree with Professor Freund that the courts in practice tend to overturn all legislation which they deem unwise, and must admit the truth of Professor Dodd's statement: "The courts have now definitely invaded the field of public policy and are quick to declare unconstitutional almost any laws of which they disapprove, particularly in the fields of social and industrial legislation. The statement still repeated by the courts that laws will not be declared unconstitutional unless their repugnance to the constitution is clear beyond a reasonable doubt, seems now to have become 'a mere courteous and smoothly transmitted platitude.' "

Departure from the legal theory at this point is leading to another change. The doctrine of the books is that an unconstitutional statute is simply a nullity. There never was such a statute. No legal effect whatever has been produced. But when in five years the courts of this country hold three hundred and seventy-seven statutes, or an average of over seventy-one a year, unconstitutional, it is obvious that such a theory becomes highly inconvenient. It is a natural consequence that a practice of recognizing what might be called "de facto statutes" is beginning to appear in one guise or another.7

2. Employer’s Liability and Jury Lawlessness

Another example is to be found in those jurisdictions where the common-law doctrines as to employer's liability still obtain... It is notorious that a feeling that employers and great industrial enterprises should bear the cost of the human wear and tear incident to their operations dictates more verdicts in cases of employer's liability than the rules of law laid down in the charges of the courts. Most of the new trials directed by our highest courts of review because the verdicts returned are not sustained by the evidence are in cases of this sort. Here the law in the books is settled and defined. The law administered is very different, and only the charge of the court, rigidly examined on appeal, serves to preserve an appearance of life in the legal theory.

3. Criminal Procedure and the "Third Degree"

More striking still is the divergence between legal theory and current practice in the handling of persons suspected of crime. The "third degree" has become an every day feature of police investigation of crime. What is our law according to the books? "The prisoner," says Sir James Stephen, "is absolutely protected against all judicial questioning before or at the trial." "This," he adds, "contributes greatly to the dignity and apparent humanity of a criminal trial. It effectually avoids the appearance of harshness, not to say cruelty, which often shocks an English spectator in a French court of justice."8 Such is the legal rule.

But prosecuting attorneys and police officers and police detectives do not hesitate to conduct the most searching, rigid and often brutal examinations of accused or suspected persons, with all the appearance of legality and of having the power of the state behind them. It is true, no rich man is ever subjected to this process... But the ordinary malefactor is bullied and even sometimes starved and tortured into confession by officers of the law. It is no doubt a sound instinct that makes us hesitate to give any such examinations the sanction of legality. We may agree with Sir James Stephen's informant that there is a deal of laziness behind it, that, to use his words, "it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence."9 The fact remains, however, that the attempt of the books to compel prosecutors to use only a case-knife is failing. They will use the pickaxe in practice, and until the law has evolved some device by which they may use it in all cases the weak and friendless and lowly will be at a practical disadvantage, despite the legal theory.

4. The Corrective Function of Jury Lawlessness

Not only does the law in the books seek to surround accused persons with safeguards which the practical exigencies of prosecution will not put up with, but at other times it demands conviction of persons whom local or even general opinion does not desire to punish. "Jury lawlessness is the great corrective of law in its actual administration." The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers. More than this, where in a particular cause there are peculiar considerations of mitigation or circumstances requiring exercise of a dispensing power, the power of juries to render general verdicts needs only a little help from alienist theories of insanity to enable a verdict to be rendered which will accord with the moral sense of the community.

The purpose of the extensions of the powers of juries... is, in largest part, to keep the letter of the law the same in the books, while allowing the jury free rein to apply different rules or extra-legal considerations in the actual decision of causes—to create new breaches and widen existing breaches between law in the books and law in action. The occasion is that popular thought and popular action are at variance with many of the doctrines and rules in the books, and that the law is trying to save the latter and accommodate itself to the former by the good old device of calling a pickaxe a case-knife.

5. Judicial Opinions and "Raw Equity"

Another attempt at adjusting the letter of the law to the demands of administration in concrete cases, while apparently preserving the law unaltered, is to be seen in our American ritual... of written opinions, discussing and deducing from the precedents with great elaboration. As one reads the reports critically the conclusion is forced upon him that this ritual covers a deal of personal government by judges, a deal of "raw equity," or, as the Germans call it, of equitable application of law, and leaves many a soft spot in what is superficially a hard and fast rule, by means of which concrete causes are decided in practice as the good sense or feelings of fair play of the tribunal may dictate.

6. Causes of the Divergence

The lawyer commonly flatters himself that the vagaries of legislators are responsible for most of the divergence... No doubt crude legislation has been a factor of no mean importance. Legislation imposing a heavier punishment upon one who gives an adult a cigarette than upon blackmail... does not impress jurors or prosecutors, or even judges, with a sense of duty of upholding the written law. No doubt, too, we have had laws made merely to please particular constituents and not intended to be enforced.

But to my mind these are the least of the matter; for our revered common law, our judge-made traditions, our settled habits of legal thought often fare little better in action. Our ultra-individualist doctrines of contributory negligence fare no better at the hands of juries, and legislation is either modifying them or leaving the whole question to juries... Again, it is a settled judicial doctrine that opposes collusive divorce. Yet every morning paper bears witness how little force it has in practice... In other words, popular thought and feeling have changed, and, whatever the law in the books, the law in action has changed with them.

Some of the causes of divergence... have been suggested already. In the first place, it is nothing new. Law has always been and no doubt will always continue to be, "in a process of becoming." It must be "as variable as man himself."10

Nevertheless, the divergence between law in books and law in action is more acute in some periods of legal history than in others. In all legal systems, periods of growth... alternate with periods of stability... Our common law in America has passed through its period of growth. ...Today we are manifestly in a period of stability. Our case law is incapable of solving new problems or of meeting new situations of vital importance to present-day life. ...On all these points we have had to turn to legislation. Juristically, then, we are in a period of stability and the growing point of law is in legislation.

Closer analysis will reveal three special causes behind the conditions in American law...:

1. That our settled habits of juristic thought are to no small extent out of accord with current social, economic and philosophical thinking.

2. The backwardness of the art of legislation, particularly in that our legislative law-making, like our judicial law-making, is too rigid, attempts too much detail and fails to leave enough margin for judicial action in individual cases.

3. The defects of our administrative machinery.

6.1. Outdated Juristic Thought

Settled habits of juristic thought are characteristic of American legal science. Our legal scholarship is historical and analytical. In either event it begins and ends substantially in Anglo-American case law. But the fundamental conceptions of that case law are by no means those of popular thought today. ...Today, while all other sciences, in the wake of the natural sciences, have abandoned deduction from predetermined conceptions, such is still the accepted method of jurisprudence. After philosophical, political, economic and sociological thought have given up the eighteenth-century law of nature, it is still the premise of the American lawyer.

The individualism of our common law is something of far more than academic interest. ...The historical school too works a priori. ...With us the basis of all deductions is the classical common law—the English decisions and authorities of the seventeenth, eighteenth and first half of the nineteenth centuries. We make of this a very Naturrecht. We test all new situations and new doctrines by it. ...Hence the character, the attitude—if I may fall back upon a German word, the Weltanschauung—of this body of doctrine becomes of the utmost practical importance. ...When in a period of collectivist thinking and social legislation courts and lawyers assume that the only permissible way of thinking or of law-making is limited and defined by individualism of the old type... conflict is inevitable.

Probably one may summarize this first point by saying that a gulf has grown up between social justice, which is the end men are seeking today, and legal justice; that the movement away from the Puritan standpoint in our social and economic and political thought has not been followed by legal thought...

The fundamental proposition from which the Puritan proceeded was the doctrine that man was a free moral agent, with power to choose what he would do and a responsibility coincident with that power. He put individual conscience and individual judgment in the first place. ...In its application this led to a regime of "consociation, but not subordination."21 "We are not over one another," said Robinson, "but with one another."22 Hence law was a device to secure liberty... The good side of all this we know well. But on the side of law it has given us the conception of liberty of contract, which is the bane of all labor legislation, the rooted objection to all power of application of rules to individual cases which has produced a decadence of equity... and the notion of punishing the vicious will...

6.2. Rigidity of Legislation

Rigidity of legislation is best illustrated in the codes of procedure and practice acts, so common in the United States, which in large measure have defeated their own ends by going too much into detail. Legislation must learn the same lesson as case law. It must deal chiefly with principles; it must not be over-ambitious to lay down universal rules. ...So long as an imperative theory leads the law-maker to think that he has only to put his views of all the details of legal and judicial administration into sections and chapters... the law upon the statute books will be far from representing what takes place actually in the courts.

6.3. Defective Administration

The third cause mentioned, defective administration, perhaps more than any other cause, is immediately responsible for making law in action different from law in the books. If any legislation has an active public interest behind it... it is labor legislation. But the proceedings of the American Association for Labor Legislation bear abundant and eloquent testimony that our copious labor legislation for the most part fails of effect because of defective administration.25

Both judicial and executive administration are at fault. A great deal of the law in the books is not enforced in practice because our machinery of justice is too slow, too cumbersome and too expensive to make it effective. ...It is chiefly, however, in executive administration that laws fail of effect. The clash of departments or even of officials, so characteristic of our polity, the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state, the elaborate machinery of check, balance and subdivision which the Puritan jealousy of the magistrate has fixed in our institutions, too often result in a legal paralysis of legal administration.

6.4. Conclusion and Moral

For the lawyer, the moral of the difference between law in books and law in action is not to be obsessed with the notion that the common law is the beginning of wisdom and the eternal jural order. Let us not be afraid of legislation and let us welcome new principles, introduced by legislation, which express the spirit of the time. Let us look the facts of human conduct in the face. Let us look to economics and sociology and philosophy, and cease to assume that jurisprudence is self-sufficient. It is the work of lawyers to make the law in action conform to the law in the books, not by futile thunderings against popular lawlessness... but by making the law in the books such that the law in action can conform to it, and providing a speedy, cheap and efficient legal mode of applying it. On no other terms can the two be reconciled. In a conflict between the law in books and the national will there can be but one result. Let us not become legal monks. Let us not allow our legal texts to acquire sanctity and go the way of all sacred writings. For the written word remains, but man changes.