[ Pobierz całość w formacie PDF ]
to the rule of law, and the reluctance to make any exceptions, were believed
not unreasonably to be indispensable to the development of a just legal
system. This was felt to express the inner meaning of justice, that the same
rules be applied to everyone. In short, justice is best provided by a govern-
ment of laws, not men .
It was against this picture of formalised justice that the realist rule-
scepticism reacted. The realists had a pragmatic attitude to justice in as far
as they regarded this picture as an unattainable idealisation of law. In the
real life of the law, there is no certainty, no guarantee that the legal process
will deliver just solutions to every problem. This absence of certainty is due,
not primarily to the human fallibility of judges and juries, but to the fact
that any real legal system will always contain indeterminacies. What the real-
ists were trying to expose and dissolve was the illusion that a sophisticated
modern legal system, perfectly formalised and idealised, is the perfect
vehicle for legal justice.
What Frank saw in this was the elimination of the human factor, specifi-
cally the marginalisation of the spirit of equity. If justice is to be real, it has
to be individualised to the circumstances of each concrete case. As we saw
earlier, the idea of equity as the necessary correction to justice administered
too literally originates in Aristotle. Frank argued that the tradition emanating
from Aristotle s account of equity distorts it by removing it from the ambit of
law, by representing it as an unfortunate necessity disrupting the regular
procedure of law, in the interests of a wider sense of justice than is allowed
by law. Frank s challenge to this interpretation, which has been very influen-
tial, reverses its assumptions. The spirit of equity, he argues, is not an
expedient to be wheeled in for the odd occasion, it is inseparable from the rest
of what we call law. Furthermore, as the superior aspect of justice, it is found
at the very heart of the law (which, for Frank, it should be remembered, is
what actually happens in its main arena, the courts) because as against
Aristotle and Pound it would be wiser to go to the other extreme and to say
that the law is at its best when the judges are wisely and consciously exer-
cising their discretion, their power to individualise cases (Frank 1949: 141).
With the abandonment of the quest for certainty, the problem of the
objectivity of justice also diminishes. Hutcheson s model judge, the realist
waiting for the flash of inspiration and hunching out solutions intuitively,
rather than applying the deductive syllogism, has a roving commission to
32 What is the law?
find the just solution (Adams 1992: 203). In contrast to the lawyers, who are
partisan for their clients, the judge is partisan for justice. This is what
Hutcheson argues against those who see the model judge as the one who
dispassionately applies the rules to find the correct decision. The justice of
the pragmatic decision is relative to the moral judgement of a real individual,
who depends primarily on understanding and experience, using formal
reason only to check and reinforce the decision. The justice rendered by the
strict application of pre-existing rules is an abstract justice that makes no real
contact with the interests of the competing parties in the legal dispute.
A final point about the pragmatic nature of justice concerns the opening up
of the deliberations of the judge to outside influence. The idea that the intru-
sion of non-logical, extra-legal considerations of social policy should be made
explicit and legitimate, for the sake of the continuing vitality of the law and its
interaction with a changing society, was first made forcefully by Holmes. This
idea has influenced the whole of modern jurisprudence, not just the legal real-
ists. Its general character is essentially forward-looking. For the realists it
meant an instrumentalist focus on probable outcomes of legal rulings, rather
than a retrospectivist reverence for past decisions. What they were advocating
was a future-directed honesty about the social objectives of the judiciary,
reflecting contemporary views of morality and justice in a changing world.
Conclusion
The crucial feature in the history of the idea of law between Aristotle and
the early twentieth century was the transition from the concept of law as
an embodiment of justice to the distinctly modern idea of law as morally
neutral fact. This was a transition from a philosophy for which the role of
natural reason was central, to a positivist philosophy of law as descriptive
science, for which the dictates of reason were quite incidental to the
subject matter of this science. The eternal ideals of the higher law were
giving way to an understanding of law as human-made expressions of
entirely earthly powers.
It is easy to see why the hard-headed factual approach of Bentham and
Austin rang true in an age of scientific materialism. Austin s concept of law
as a structure of commands appealed to the nineteenth-century scholars and
lawyers who were looking for the truth behind the idealised rhetoric of
natural justice. From a secular point of view, natural law looked increasingly
like a relic from more spiritual societies. Many of the features of this posi-
tivism were adapted and developed by the early American realists. Holmes
[ Pobierz całość w formacie PDF ]