Northwestern College of Law - Norwester Yearbook (Portland, OR)

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W X , ' .f '- C1 ,cf-, 1 fin S' xy 1 . ,Y :. 1- Ulf 1.1.1 g Y, f 1 f' X fr .x. . , K-, Rf! X 1 . P . . A , .,i,.w, pi-iilfj, J 1- -. lv V U lil .f ,. .iw ,lm J ,- r, . N-,1 ., -.. - i. f if restraint if he would have any sort of association with his fellows. Even at maturity he feels resentment if restraints are imposed upon him in his pursuit of happiness which are not imposed upon others. This feeling is specially noticeable in the matter of taxation. If one believes the taxes imposed by the government are unnecessarily heavy he may feel some re- sentment, but his resentment is much greater if he believes he is overtaxed in comparison with his fellows. This feeling is not ignoble. It is far dif- ferent from the feeling of envy. If I can only afford to ride in a street car, I may envy the man who can afford to ride in a luxurious automobile, and yet not feel wronged. But if I am excluded from a public street car to which he is admitted I have a different feeling,--that of resentment. This feeling is natural. Nature is impartial in the application of its laws. It allows no exemption. The rain falls on all alike, and the fires burn the weak as well as the strong. Who then is to determine what degree of restraint on liberty is neces- sary to secure this equillibrium which we call justice? Obviously it is society acting through the law. Three elements constitute the content of a judicial decision. Q11 A number of legal precepts more or less definedg C21 A traditional technique of developing and applying legal preceptsg CBJ a body of philosophical, political, economic and ethical ideas as to the end of law. At opposite poles we find the application of absolute rules by the courts, and the exercise by them of unlimited discretion. It has been the proud boast of Massachusetts that it afforded a government of laws and not of men, and in that state the allowance of equity jurisdiction was long delayed. On the other hand many of us feel that the law was made for man rather than man for the law. Possibly these two conceptions can be harmonized. What plan is best in the long run? The great triumph of any system of law is that justice is thereby attained in the vast majority of cases without litigation. If the rules are definite and certain, there is less opportunity for dispute. It is this element of certainty, together with the preference which many men have to be subjected to an inanimate rule rather than to the unbridled will of one of their fellow men that makes lawyers insist that judgments should be based on precedents and the logical extensions thereof. To attain certainty the law must act in gross with rules made for the average case, with the result that the lay mind focussed on a single case is apt to regard the law as arbitrary and technical, and as defeating the ends of justice. This much must be admitted,-we cannot X u ff fjjgfii -fjij,fQ- .9134 , fl L 1,1 -i. ', kgs, far: Q-P TJ - X, f X lu C J A 4 ' . .X ,., .., ,,.,,, .I , f xg, M- .--rf X- .1 -gif '- '-1' s.-V t-H' Elmfen

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Concerning Justice Rv Inman J, Hum' .I-licNmzICKsoN Drnn nf llm NflFf1I?n'FA'fl'I'll C'ulIc'gv uf Lam' TUDENTS of law should also be students of justice. I wish this year to comment briefly on the meaning of justice as viewed by the lay mind and as interpreted by the courts. In his picturesque Lives Plutarch has this to say of the Greek, Aristides: Of all his virtues, the common people were most affected with his justice, because of its con- tinual and common useg and thus, although of mean fortune and ordinary birth, he possessed himself of the most kingly and divine appellation of J ustg which kings, however, and tyrants have never sought afterg but have taken delight to be surnamed besiegers of cities, thunderers, conquerers- affecting it seems the reputation which proceeds from power and violence, rather than that of virtue. Earthquakes, thunders and storms have great powerg but in justice and equity nothing participates except by means of reason and the knowledge of that which is divine. Socrates was non-committal. Under close questioning he replied, I know not what justice is, and therefore am not likely to know whether or not it is a virtue, nor can I say whether the just man is happy or unhappy. Subsequently Aristotle tersely defined justice as that virtue of the soul which is distributive according to desert, and J ustinian in his Institutes declares it to be the set and constant purpose which gives to every man his due. The most workable conception seems to have been expressed by Emery in his lectures before the Yale Law School in which he reached the conclusion that justice is the equillibrium between the freedom of the in- dividual and the safety of society. Whatever difficulty philosophers may have had in defining justice it is not shared by the average litigant when he feels that a rank injustice has been done him. As an old English judge remarked Injustice cuts to the bone. There is an innate feeling that society abridges individual rights instead of conferring them. From the Decalogue down the language of the law has been compulsive, Thou shalt and Thou shalt not, and men generally act upon the theory that what society does not forbid by statute or custom the individual may do. The young, untrained child is impatient of all restraint. It is only by experience that he learns he must submit to Ten

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' .gif f ij' , 'l r l 'Q both have a rule and liberty to break that rule whenever it seems to work a hardship. What has been the result of this conflict between certainty and indi- vidual justice? It has suggested that the rules established by the courts are but the formulations of the customs and mores of the community. These customs, however, have been dictated by a relatively small section of the people. The disabilities imposed by the common law upon married women certainly did not reflect the wishes of that sex. The implied condi- tion in contract law of work before pay can be traced to the dominance of the employing class, while today with a shifting of power, labor unions may combine in a manner denied capital. Holmes in his Common Law pro- claims that the life of the law has not been logic 3 it has been experience, and you have been referred in your courses to tendencies all along the line from formalism to informality, and yet we must admit that the progress has been slow. Covenants in a lease are still regarded as independent, and the tenant when sued for rent cannot defend on the ground that the land- lord has failed to make promised repairs. So, in spite of the custom of merchants, bills of lading and stock certificates have only been made nego- tiable by statute. Legislation has usually been the only way to effect a rapid change. For several other means have appeared for relieving the rigidity of the law. Equity was created for that very purpose, and it was suggested by its early critics that the measure of the Chancellor's conscience was apt to be as uncertain as the length of his foot, but even in equity there has been a hardening of the rules, so that in many cases no relief is granted. The tendency of time is to provide increasing precedents for legal action which in turn points to greater certainty of' decision. There is, however, a tre- mendous loophole in the attitude frequently taken by courts that the facts of a particular case take it out of the control of precedent. Sometimes the reasoning sounds artificial, sometimes it is based on a fragmentary state- ment of fact, and sometimes the decision is not dignified by any reason. lt has been aptly said that hard cases make bad law. A departure from rules of law administered by the courts is found in the growth of administrative boards, such as the Industrial Accident Com- mission and the Public Service Commission, the members of which enforce their views of-what under particular circumstances is fair, sometimes with little regard to established rules. .xi I 1 -l ,L Twelve