ANOTHER JOB FOR JURISPRUDENCE

Published date01 March 1945
DOIhttp://doi.org/10.1111/j.1468-2230.1945.tb02885.x
Date01 March 1945
AuthorWalter B. Kennedy
18
MODERN
LAW
REVIEW
March,
1945
A
man
of
experience in the affairs of the world at large
is
excellent
material out
of
which to fashion a really good judge on questions of fact
;
much more so than the lawyer who has spent
all
his life in Chambers
and Courts.*s The trouble is that we have
so
far taken
SO
little pains
to see that this material is properly uscd. Maybe the Report of the
Interdepartmental Committee indicates that
a
new era will open.
R.
S.
T.
CHORLEY
48
An
experienced County Court Judge. who
is
also
a
magistrate. is reported in
The
Justice
of
the
Peace,
CXVIII,
p.
158.
to
have said:
“So
long
as
they have
someone to keep them straight
on
the law
a
mixed bench is much more likely
to
do fair justice than one lawyer however good
a
lawyer he may be.”
ANOTHER
JOB
FOR JURISPRUDENCE
N
the first issue of the
MODERN
LAW REVIEW, Felix
S.
Cohen began
his paper on the subject “The Problems
of
Functional Jurispru-
dence
with the conciliatory but doubtful suggestion that functional
jurisprudence could be defended
without attacking the doctrines or
the achievements”
of
any other school.1 This generous gesture
of
concord directed to antagonistic schools of juristic thought will not
stand up under examination to-day. Indeed it was highly questionable
when
it
was first penned in
1937.
Mr. Cohen’s provocative article
“Transcendental Nonsense and the Functional Approach which
was then in print and the present writer’s criticisms of this paper,3
disclose the jural chasm which separates the conceptual and the prag-
matic jurist, the transcendentalist and the functionalist, the scholastic
and the realist.
This
gulf which divides jurisprudential scholars into two camps*
is clearly depicted in the pages
of
C.
P.
Harvey’s scholarly paper
“A
Job
For
Jurisprudence” in the April,
1944,
issue of the
MODERN
LAW
REVIEW.
To strike the keynote of
Mr.
Harvey’s interesting
article, preliminary to
a
more critical examination, he implores the
“academic jurist” to come down from his heaven of legal concepts
and to deal with concrete problems in the law.6 He urges the concep-
tual scholars to fnrego the study of Year Books and deplores research
I
(1937)
I
MOD.
I-.
17.
I.
(1935)
35
Col:tm!,ri
I.QW
Re~iCw
809.
3
Kennedy,
FIII:~
\i,~al
Sonsense and the Transcendental
Approac;.
w
273
:
“More Functional
Nonsense-.\
Rep:
..
.
;.&rani
Lam
Revi~w
7j.
See
also
Mr.
Cohen’a
I’,
;;,\
jb.
Is
flip
two
attitudes of
legal
thinking- “the fundamental
and the scipntific.”
LAW
anLearnirlz ‘I‘hemy Throngh the Looking
Glass
of
Legal Theory”
(1944)
j3
Yafc
!.?.s:
jotwna/
3
j8.
Compare Kennedy.
My
Phi!nso-
phy
ofLaw
(1941)
147-160.
Both
Mr.
Cohen and
Jlr.
Harvey
are insirtent upon
a
down-to-earth
appraisal
of
law,
a
descent
frrmi
ttic
“heaven
of
legal concepts,”
a
juristic dive
to
”the pedestrian
lcvcl
of daily
IIIC.”
The same general criticisms used against
Blr.
Cohen (note
3)
may
be
repeated
ngaicst
RIr.
Harvey’s
critique
of
the common
law with the addition of ncw material suited
to
the fresh approach made bv
blr.
Harvey
in
his current article.
1
*tm
REVIEW
548
;
(1936)
6
Foidhani Law
R
ANOTHER
JOB
FOR
JURISPRUDENCE
19
into the “manumission
of
slaves in the reign of Hadrian.” Instead,
the proposed programme is to concentrate upon present-day legal
problems; to divert their talents and time to subjects that really
matter rather than waste their efforts on fine-spun cogitation that
matters not.
Unlike Felix
S.
Cohen,
Mr.
Harvey is clearly not in a compromising
mood regarding the tenets of other schools of jurisprudence. His
complaint against classical jurisprudence is
a
very broad indictment,
It is framed
in
fighting phrases.
“If
you once get a set of reasonably
acceptabie rules and
a
machinery for applying them which really works,
you do not need any jurisprudence.”6 While this peremptory ejectment
of
jurisprudence
in
toto is like hurling the baby out with the bath
it will shortly appear that Mr. Harvey, despite his complete dismissal
of jurisprudence, has his
own
secret brand
of
legal philosophy which
may tentatively be called pragmatic in its basic qualities. But now
and later, let
us
not quarrel too much over labels. Some might call
Mr. Harvey‘s approach functional, others might label
it
realistic,
experimental or factual. The point of importance is that
all
the new
schools are, although in different degrees, antagonistic to the tradi-
tional common law techniques.
To
borrow a helpful term from Jerome
Flank, the new legal
isms
are alike marked by the common quality of
the “againstism” aimed at the common law.
In
this respect, and
I
think correctly,
Mr.
Harvey refuses to extend the olive branch of peace
to the conceptual schools of juristic thought on any other terms than
unconditional surrender.” Yes, there is a great divide which separates
functionalism from transcendentalism, realism from scholasticism,
idealism from factism. Up to the moment there seems to be an irre-
concilable difference between these clashing philosophies of law.
Because
of
these issues
I
desire to make reference at some length to
the debatable and arguable phases
of
Mr. Harvey’s paper which arouse
adverse comment of the conservatives in the law.
Continuing the present objective of a general paraphrase of
Mr.
Harvey’s learned article, he offers as his principal task the disclosure
of the ancient and crumbling principles of the common law and their
inability to solve the pressing problems of the moment. He poses
some practical problems to prove his point. For example, he refers
to the rapid development of hire-purchase agreements following the
advent of the motor car and the consequent economic, financial and
legal problems unknown and unknowable to the
‘I
jurisprudes
in
earlier years. With the auto-car came the Finance Company (the
“fairy godmother of the motor car hire-purchase”), and in
its
train
followed the Fraudulent Dealer (the villain of the hire-purchase era),
who frequently defrauded both the Finance Company
and
the Customer.
Inevitably, the hire-purchase melodrama
is
complicated by trouble-
some questions of law. Out of this situation
Mr.
Harvey asks
a
series
of questions directed to the scholars of jurisprudence: What solution
has jurisprudence offered
for
all this? What good is their “systematic
a
P.
42.
20
MODERN
LAW
REVIEW
March,
1945
synthesis of interrelated principles of law in this worldly mess
?
His point seems to be that omniscient jurisprudence has
no
practical
solution and could have none for the vexatious complications arising
out
of
the hire-purchase of autos, furniture and vacuum-cleaners.
These current questions, he argues, “show how wide is the gulf between
established legal principles and the social conditions of to-day,
a
chasni
to be bridged in defiance
of
logic and legal theory and solved by
‘realistic improvisations.’
Just why jurisprudence alone is expected to have a ready-made
solution, seemingly to be extracted like the proverbial rabbit from
the magician’s hat, is not revealed by Mr. Harvey. It may be per-
missible to recall that the final solution of these current problems
was not found overnight even by the realist or pragmatist
;
they have
been worked out painfully through the processes
of
trial and error,
and-we maintain-with the good will and co-operation
of
the
con-
ceptualists. Why blame the poor principle-ridden theorists for the
delay in meeting the novel situations caused by the hire-purchase
apeement? Mr. Harvey does not make it clear what “defiance of
logic and legal theory”
was
involved in the “realist improvisations
that finally solved the legal puzzle emanating from the hire-purchase
contracts. Because Jurisprudence had no ready-made card index
with separate entries marked
hire-purchase
or
fraudulent dealer
this
does
not prove that jurisprudence had no
just
or reasonable or fair
standards, rules and principles to be applied to this novel situation.
One
is
reminded
of
Justice Holmes’ pertinent tale-
“There
is
a
story
of
a
Vermont justice of the peace before whom
a suit was brought by one farmer against another for breaking
a
chum. The justice took time to consider, and then said that he had
looked through the statutes and could find nothing about churns,
and gave judgment for the defendant.”’
To-day there
is
a growing danger that our legal reformers are
making a fetish
of
facts as though the related legal problems are
solved
if
we can only collect all the diverse data relating to motor
cars, chewing gum or hair tonic. Conceding freely the old evil
of
a
mechanical jurisprudence of concepts,8 are we not facing the greater
evil
of
piling up statistics, graphs and questionnaires
in
the belief
that a catalogue
of
the facts will automatically solve the legal problem
?
The “tyranny of tags and tickets,” to use Justice Cardozo’s phrase,
is
now returning to plague the advocate
of
the functional approach.
The pragmatic endorsement of the “rule that works,” or
of
“fact-
finding,” or of the “realistic solution” as
a
substitute for “legal
concepts”
or
“airy abstractions”
in
the law may be merely a sub-
stitution
of
a
new chain of “inadequate catchwords.”
But the basic fallacy, argues Mr. Harvey, “is
in
the elevation
of
jurisprudence to the status
of
a science.”
It
is certainly true, as
(XQZX),
Holrnes,
Collective
Legal
Pfpers.
p.
196.
Pound.
”Mechanical
Jurisprudence (19aS),
8
C‘o/ittiILiu
Lo&,
Rt“*irw,
p.
605
ANOTHER JOB FOR JURISPRUDENCE
21
he says, that law is not a science or is at best a speculative science.
But many of his brethren in the pragmatic and realist schools are
seemingly unaware that the bordering disciplines, invoked to solve
the current problems of law, also fall far short
of
precise scientific
stature. Psychology, economics, sociology and semantics-all very
dear
to
the pragmatic jurist-are also far removed from the certitude
of knowledge that surrounds the physical sciences.9 This does not
mean that the lawmen can escape or excuse their own limitations by
pointing to the shortcomings in neighbouring laboratories. But it
does warn that legal scholars are not going to solve their problems by
the easy expedient
of
inviting economists, psychologists, phrenologists,
hunch-advocates,1° stomach specialists’l or social workers to take
over the “job of jurisprudence.”
To apply the foregoing generalizations to Mr. Harvey’s paper.
no conservative jurisprudential scholar would question the value of
collecting all the pertinent data regarding thc hire-purchase agree-
ment, the operation of the Finance Company or the sinister practices
of the Fraudulent Dealer. All this fact-finding is necessary and helpful
in the solution of the involved
legd
problems. But having found the
facts, the pragmatic jurist, no less than the conceptual scholar, must
still find the legal solution. Some norm
or
standard, new or old, must
be developed and applied. President Robert
M.
Hutchins,
of
the
University
of
Chicago, states this point clearly-
“Empirical operations do not make a science. Facts
do
not
organize themselves. Let me emphasize as strongly as
I
can that
we must accumulate cases, facts
and
data.
I
simply insist that we
must have
a
scheme into which
to
fit
them.”I2
The “scheme” proposed
by
President Hutchins pays full tribute
to the importance of vigorous investigation
of
all the facts, but it
also insists upon the continuing and ever-present importance of the
development and refinement
of
I‘
the principles and rules which
constitute the law.”
Mr. Harvey then warms to the task of proving that the main
evil
of
traditional jurisprudence
is
its slavish devotion to and defence
of the common law with its devious ways of refurbishing ancient
landmarks, distorting old rules to meet the needs of a progressive
society, and bulking the conglomerate mass
of
evasions and nonsense
into
a
sort of “supernatural organism” which
we
call, with bated
breath and lowered eyelids-the Lady of the Common Law.
He
The present writer has considered the unscientific aspects
of
the social
sciences in two papers.
Psychologism in the Law”
(1940).
29
Georgefown
Laic,
Journal,
p.
139;
“A
Review
of
Legal Healisni”
(1940):
9
Fovdham
Law
Review,
p.
360.
Compare 31r. Cohen’s reference
to
“such positive sciences as economics
and psychology.”
Op.
cit.
supva.
note
2, at
p.
821.
10
Hutcheson, “The Judgment Intuitive: The Function
of
the ‘Hunch’
in
Judicial Decision”
(1929).
14
Cornell
Law
Qcturterl.s.
p.
274.
11
Realists have made occasional reference to the. possible importance
of
a
“gastronomical approach
in evaluating judicial decisions.
1%
Hutchins, “The Autobiography
of
an Ex-Law Student”
(19341,
7.4nrr~irror
Law
Journal.
pp.
logr--ro55.
22
MODERN
LAW
REVIEW
March,
1945
leaves
his
readers in no doubt about his extreme anti-common-lawism,
and his violent opposition to the works and theories of Maine, Holds-
worth and other English historians, concluding with a special criticism
of
Sir
Frederick Pollock, the “unchallenged high priest of this cult,”
who made
a
goddess of the Common Law cynically described by
Mr. Harvey
as
“an immortal old lady, always half asleep but never
qbite oblivious,
. .
.
never too torpid to lift an antique eyelid at the
slightest symptom
of
disorder.”lS
This
is
a
pretty severe indictment written
in
a most sarcastic
manner
and calling for the termination of the reign of the Lady of
the Common Law. Enthralled by the picturesque language of
Mr. Harvey’s funereal farewell,
it
is difficult to resist the temptation
to sketch out the opposition Kingdom to
be
erected by the practical
men of the law. Here dwelleth the followers of Functionalism, creating
the modernistic Olympus which has for its first task the eviction of
the musty absolutes of the classical traditions, displaced
in
the Strato-
sphere of Science. Here in the Elysian field
of
social sciences, one
rubs
against
things
“as
is”
divorced from any “ought” principles.
Gone are the
airy
concepts and legal formulas of the Heaven
of
Abstractions. Here one
finds
all sorts of mechanical contraptions
capable of
grinding
out all the facts without error
:
lie detectors which
reveal the tentative truths and postulates
of
the legal order, electrical
devices capable of measuring the state of the judge’s digestion and
its
probable effect upon his judicial decisions; and the latest device of
all, judicial radar, guaranteed to decide all legal questions automatic-
ally with the whirl
of
a knob.
But we resolutely resist the temptation, elsewhere attempted,” to
contend in metaphorical style that scientific jurisprudence,
no
less
than traditional law, has its fringe of nonsense; that
Mr.
Harvey’s
fellows in the functional field are inclined to nod occasionally no
less than the Goddess of the Common Law. Yes, the dear Lady has
her faults, many and substantial, but the remedy
is
not to remove
the doddering Goddess from her throne before we investigate her
health and character. In any event, before we dismiss her, she is
entitled to her day in court, the same day that she has granted to
her subjects down the long years of her reign. Such is the law of the
land-in America and in England. This day in court, we suspect,
will produce the same verdict pronounced several years ago by Chief
Justice Stone-
“Whatever
its
defects, the common-law system, deep rooted
in
our
tradition and habit of mind, after serving us for some six
centuries,
will
not be discarded. In the role of critics and prophets
we will do well to accept that
as
the probable verdict of history.”15
After
Mr.
Harvey has completed his denunciation of the common
la
P.
48.
l6
Stone,
Review.
pp.
4.
7.
Note
3:wpra.
The
Common
Law
in the United States”
(1936).
50
Haroavd
taw
ANOTHER
JOB
FOR
JURISPRUDENCE
23
law, he follows the pattern
of
the legal reformer by proposing remedies
for the
hotch-potch of barbarities, accidents, evasions, customs,
prejudices, horse sense and nonsense which we call the Common
Law.
.
.
.”I6
It
is to
this
all-out feature of Mr. Harvey’s paper we
now direct special attention. He opens the constructive phase
of
his
argument by outlining the substituted methods which he offers in
displacement
of
classical jurisprudence. His key principle
is
set forth
in
the following words-
“The point
is,
that the ultimate
and
only proper
test
of law
is
not whether
it
answers to certain concepts believed to be basic
by philosophic thinkers or whether
it
presents on paper
a
sym-
metrical appearance, but simply whether
it
works-whether on
the pedestrian level of daily life
it
answers the needs and resolves
the difficulties of the common man, to whom the stratosphere of
jurisprudence is
an
uninteresting
as
it
is
remote.”“
This
formula
is
framed in the
best
tradition of Peirce, Dewey,
and
James,
American pragmatists, and
in
the spirit
at
least of the
utility-formulas of
Mill
and Bentham.
It
is
essentially
a
practical
proposal
and
argues for the shaping of legal
rules
after the events
that created the problems. Law would
be
pronounced for the day
only after the style of
a
railroad excursion ticket. Needless to add,
Mr.
Harvey’s proposal leaves no place for natural law or for a static
positive law, but tends to substitute
trial
and error for precedent,
and
to minimize the doctrine of
stare
decisis.
Mr. Harvey then follows with concrete proposals which offer
an
excellent proving
ground
to compare the respective merits of tra-
ditional
law
and
his
pragmatic substitutes. Descending from the
“stratosphere of jurisprudence” (where he locates the domicile of
all
conceptual jurisprudes) and reaching the “pedestrian level of
daily life,” the proponents of legal principles propose to test out the
principal palliatives which Mr. Harvey offers for the purpose of
improving the administration of justice. We promise that our approach
will
be
in
the best pragmatic manner (making due allowance for
a
conceptual bias).
Ours
will
be
a constant search for the jural system
which will
work,
a submersion of the appeal to sacrosanct doctrines
and omniscient extracts from the heaven of legal concepts.
But first
:
a
preliminary observation. Pragmatism
is
essentially
a
protest
;
James calls it philosophic Protestantism. Legal pragmatism
is
also
a
protest-legal Protestantism-a protest against the common
law and a critique of its ability to regulate changing societal
and
economic relations. Since legal pragmatism
is
in
substance
a
counter
proposal squarely antagonistic to the common law, the burden of
proof that legal pragmatism can be successfully transplanted into
the law is upon the proponents of the new programme. It
is
necessary
and
proper that the critics
of
the existing common law prove that theu
1.
P.
4a.
17
P.
49.
24
MODERN LAW REVIEW March,
1945
substitute is workable and efficient before the common law is dis-
carded. Plans and specifications of the new streamlined pragmatism
in the law must first
be
tested. There is common-sense as well
as
common law in defence of this proposal: that we know with reason-
able certainty what we are offered by Mr. Harvey before we consent
to the razing of
a
structure that has functioned at least continuously
for six centuries. With this condition precedent in mind we are now
ready to descend from the clouds
of
conceptual jurisprudence, walk
on
the solid ground of pragmatism and test out the general programme
tentatively proposed by Mr. Harvey.
The three proposals of Mr. Harvey are:
(I)
simplification
of
pro-
cedural
rules
and the reduction
in
the cost of litigation
;
(2)
national-
ization of the legal profession; and
(3)
an over-all system of State
insurance not only to underwrite the risk of
a
litigant’s liability for
damages but also the costs of the litigation itself-all to be paid by
the government.
The first proposal for the simplification of procedure and the
reduction
in
the cost
of
litigation is certainly one that merits the
support of all jurisprudential scholars regardless of adherence
to
any
particular shade
of
juristic thought.
So
far as
I
am aware,
Mr.
Harvey’s
first
proposal would receive support from all philosophers in the law.
All
would join hands in his commendable objective to curb the com-
plexities of pleading, to lessen the law’s delay, and to provide simple
and
practical remedies for the enforcement of all judgments. The
jurisprudential scholar must
bear
his fair portion of the blame for the
admitted failure to face and to solve this problem which
Mr.
Harvey
states is
a
most important one. In his words, “unless the adjective
law of procedure is
a
working machine, constantly translating these
obligations in terms of Court orders and actual execution, the sub-
stantive law might just as well not exist.” But there is a bit of
concealed humour
in
Mr. Harvey’s expression, or at least implication,
that this is distinctly
a
“job” for the scholars and not for the “prac-
titioners” who are “too exhausted” to devote attention to reforming
their
own
machine. Once more we ask: Why pick
on
the scholar for
failure to do a
“job”
distinctly
practical?
Why excuse the practising
attorney for this failure? Why not at least apportion the blame
so
as to include the practical men
of
the law, the so-called pragmatic
lawyers, who are unable to propose effective reforms “because the
labour of minding their outmoded machine leaves them too exhausted
to think about improving it
?
But we need not pause longer with Mr. Harvey’s first proposal
of
procedural reforms. He states that even if these procedural reforms
were fully accomplished, there would still remain the financial problem.
As
he succinctly states it, “However tnuch you cheapen and simplify
it, litigation is always
going
to cost money and the question is, where
is that money going to come from
?
I’
If
the simplification of procedure
were fully accomplished the result would not satisfy him.
He
makes
the discovery that under the most Utopian plan of procedure
ANOTHER
JOB FOR
JURISPRUDENCE
25
“litigation is always going to cost nioncj- ”-a terrifying thought which
moves him
to
propose his all-out, two-pronged formula to end for all
time the reign of the Lady
of
the Law who dwells in the clouds, and
to substitute for her
a
new crcaturc whom we might call Peter
Pragmatism-tlw practical man who is going to walk at the pedestrian
levrl and
solvr
all legal problems without slavish adherence to the
precedents-and without cost
!
In some fashion or other it seems that
the disbursements of money by litigants in the pursuit of justice is
a
barrier which must be removed, not partially but completely, in order
to bring about the new cra
so
vchcinently defended by Mr. Harvey.
He
drives forward to his second proposal: The nationalization
of
the Bar. Mind you, we are not now interested in the internal function-
ing or mechanical operation of the novel proposal to distort the
freedom of the Bar into a strait-jacket undcr complete control and
subsidy
of
the State.
We
do not pause to consider the material evils
that might possihlj- be brought about by this major change in the
age-old relations
of
attorney and client and the intimate and personal
elements of such fiduciary rclationship.
We
pass all these important
matters for the moment. Let us assume the full and complete national-
ization
of
the Bar with the State machine purring sweetly and with
each little attorney, counsellor and solicitor assigned to his appropriate
cubicle while working without stint to make Mr. Harvey’s State-
operated and State-financed sjystem
a
success.
We
propose a pertinent question which inevitably must be faced
at the very threshold of this programme
:
What necessary changes in the
substantive or procedural aspects
of
the common law will follow the
nationalization of the Bar? Let it be carefully recalled that Mr. Harvey
is framing a programme which has as its first objective the erasure of
the nonsense and shortcomings
of
the common law, the elimination
of
arid principles and moth-eaten precedents and the substitution
of
a
li\re, up-and-coming formula which will revitalize the decrepit and
moribund legal order. What substantive effect will the nationalization
of
the Bar have upon our present-day Maines or Holdsworths or
Pollncks and their discredited notion of Traditional Law? Assume that
the United States Bar follows suit and that nationalization sweeps
through the forty-eight states of the Federal Union: How will
his
elimination
of
the costs
of
litigation or liability bring about
per
se
any shift from the traditional law with its empty principles and its
airy concepts? May we not have our Wigmores, Beales and Willistons
even under the nationalization of all attorneys?
It
may be admitted in all fairness that the nationalization pro-
gramme might be more acceptable to the so-called pragmatic or realist
jurists, in the American scene at least, than among their more
conservative brothers on the Bench or
at
the Bar. On the other
hand,
I
can think of many pragmatic or realist jurists who would
differ violcntly on the merits
of
pragmatism
versus
realism and
yet
might well be united in their refusal
to
accept the goose-step
of
State-
regulated barristers.
26
MODERN
LAW
REVIEW
March,
1945
These preliminary thoughts sum up to this pertinent and important
conclusion. His nationalization programme has absolutely nothing to
do with the legal reforms which he is seeking to bring about by funda-
mental change of the common law. Otherwise stated, the common law
with all its barbarities, accidents, evasions, customs, prejudices, horse-
sense and nonsense, iould remain in full force and effect under the
proposed State subsidy of law. It is, of course, true that pragmatic
jurisprudence could also be introduced within the framework of
a
State-operated Bar. But
it
is not in any wise necessarily interlocked
with this nationalization plan.
Passing to the main evils of the nationalized Bar, a few of the
outstanding difficulties which must be considered and weighed are
now briefly catalogued. First of all, it will not be sufficient to nation-
alize the Bar and then to provide that each litigant is privileged to
draw an attorney from the common pool or panel in rotation-as
one draws a lottery ticket from a hat-and conclude that the objectives
of
Mr. Harvey are automatically and completely satisfied.
If
his plan
is to function as
it
is intended, it must provide equal treatment for
all. The leaders of the British and American Bar must be available
for the humble as well
as
wealthy litigant. The real cost of litigation
does not end by providing a lawyer for all contestants. He must see
to it that good lawyers are provided for each litigant or else the cost
of litigation lingers on even under the full blossoming
of
the Harvey
programme.
A
failure to provide a good lawyer, especially when he is
pitted against an octstanding lawyer on the other side, may be reflected
in the lowering of the amount of judgment obtained or even a complete
loss
of a worthy cause because of the errors of inexperienced counsel.
Again, the cost of litigation must include the providing of able investi-
gators to search out witnesses, examine records and
do
the many other
preliminary acts which fall under the control of the attorney in America
or the soiicitor in England.
How
can the able lawyer properly prepare his case unless the client
is guaranteed complete and expert assistance in the search
of
the facts?
Mr. Harvey would hardly be able to deny logically the necessity for
these additional items as parts of his nationalization proposal, for he
has gone to great length in his description of the current factual
changes and the novel legal problems that foilowed the advent of
such inventions as rmtor cars and washing machines. Fncts are
important, more important seemingly than legal
concepts.
Sc!
ii~t
argues. Then let
iis
at
once propose
a
sweeping amendment
to
is:.
State-operated legal
prcf+.ssion,
a proviso that an army
of
gr)vernii?ci!t
fact-finders, experienced, well paid
md
qu:illy
trained, be sent fimh
to locate witxsses, exarniw corprrr;tt:
books,
investigate rumours-
to the end that all litigants, already provided with the best lawyers
to conduct the judicial
stages
of
the litigation, may also be assured
of
a
thorough examination into the facts. Lest it be thought that this
apparent attempt to reduce Mr. Harvey’s proposal
to
a
redzrctio
ad
absurdurn
is a fantastic and straw-man argument,
I
direct attention
ANOTHER
JOB
FOR
JURISPRUDENCE
27
to the fact that this very issue was recently debated by two able judges
of the United States courts. Judge Jerome Frank
of
the Circuit
Court of Appeals made this general contention that fact-finders should
be paid by the State in order that the case of clients, otherwise in-
capable of going to court, might be fully prepared.ls The counter-
arguments were made by Judge John
C.
Knox of the District Court.lB
Let
it
also be duly noted that even the best lawyer and the best
investigator cannot unitedly or singly foretell the outcome of investi-
gation or litigation. They cannot possibly predict the result until the
investigation has been made. Then only will the counsel be able to
advise the client to sue or to settle. The practical operation of
Mr. Harvey’s programme must include a nationalized Bar, and
a
nationalized investigating force for plaintiffs and for defendants as
well available prior to the trial.
A
programme
so
staggering must at
least give us pause.
But the preliminaries
of
the programme to nationalize the Bar
suggest other more pertinent questions
:
Will this programme
function? Why not? asks Mr. Harvey. But he concedes that the
proposal of a nationalized Bar is indeed “too strong meat for most
legal stomachs.” One may continue his figure of speech and suggest
that
it
might bring on juristic indigestion! His proposal
of
a
Bar
regulated by the State, manned with bureaucrats, charged with politics
and wholly divorced from the personalized and confidential relation-
ship of attorney and client is not a very reassuring one.
But let
us
return to the main issue. Even if the legal, procedural,
economic
and
political difficulties of
a
nationalized Bar were eliminated,
this sweeping change by itself would not bring about
a
single reform
in the “hotch potch” which we call the Common Law and which
Mr. Harvey
is
aiming
to
reform. While he is convinced that his Bar
programme
is
sound, he concedes that
for
the present “something
less radical may be more acceptable.”
We therefore advance to the brief consideration of the third and
last proposal of Mr. Harvey’s plan aimed-let
us
recall
it
once more
because
of
its great importance-to get rid of “so-called basic prin-
ciples” and “intricate entanglements” of the common law that might
easily be diminished by his common-sense reforms offered as simple
substitutes for the legal complexities of the decadent common law.
What is the third part of his programme which he promises will be
“less
radical”
in nature? What
is
this method which he promises will
bring down the law from the heaven of legal concepts to the “pedestrian
level of daily life
?
His panacea is universal, complete insurance coverage which will
not
only
protect any and all poor persons against all legal liability,
but
also
pay the costs
of
all litigation for both plaintiff and defendant.
“What is needed,” says Mr. Harvey,
“is
a comprehensive national
Jerome
Frank,
“White
Collar
Justice,”
Saturday
Evening
Post.
July
17th.
John
C.
Knox.
“Just
Justice.”
Saturday
Evening
Post.
July
24th. 1943.
J94!;
28
MODERN
LAW
REVIEW
March,
1945
system of insurance against litigation in general for persons whose
income level does not permit them to stand up for their rights on
their
own
This
is
certainly an awesome programme, however
sound or practical it may ,be, and raises at the outset the question
whether this third part of his programme is really “less radical” than
the nationalization of the Bar tentatively proposed by Mr. Harvey.
It
is seriously suggested that in its logical and inevitable developments
the all-out insurance programme of Mr. Harvey matches, if
it
does
not exceed, the foregoing plan of a subsidized State Bar. As
I
read
it, his insurance policy clearly aims to provide for the costs of litigation
and to protect the rights of the poor
plaintif.
Very good. But how
about the underwriting of the duties and the risks of the poor
defendant?
A
pauper as well as a prince may cause damages to another, negli-
gently
or
wilfully.
A
person,
so
damaged, may be poor or rich.
It
is
not clear whether the Harvey insurance plm extends to such a case.
Would Mr. Harvey limit the poor defendant-aggressor’s insurance
coverage to the costs of
litigation
and excuse him from
liability
if he
is adjudged responsible for negligent
or
wilful wrong to the plaintiff?
Just
as
the private motorist is protected from both liability to pay
compensation to the injured party and also avoids the cost of litigation
in the same action,
so
it would seem that a similar breadth of coverage
must necessarily be an ultimate phase of Mr. Harvey’s newly discovered
heaven of insurance. Nor can one consistently escape this suggested
step
of
liability coverage for every poor defendant by saying that he
is
not interested in the defendant’s
obligations
but only “in the position
of
any
poor litigant who is confronted by an opulent adversary.”
Two answers seem to destroy the justice of this partisan protection
of the poor litigant who
is
given both a sword and a shield, a sword
to pierce the amour of any defendant who is
obligated to
him,
and
a
shield to prevent any plaintiff, opulent or pauper, from
collecting
from
him.
The opulent or poor adversary as party plaintiff has rights
to seek reimbursement for wrongs done by any defendant regardless
of the latter’s financial standing. The plaintiff suing the pauper
defendant may himself be a poor person.
Is
he not entitled
to
something
more than protection against the costs of litigation? Should he not
be guaranteed
a
collectibIe judgment as well? Any other solution
would create a selfish and unjust egoism which would tend to cause
clashes within the social order
on
the ground of inequality.
Logic, justice and pragmatic arguments unite to broaden hIr.
Harvey’s programme. Before it
is
completed it must
be
extended to
all litigants and all liabilities of all kinds-civil, criminal and adminis-
trative-wherein
a
poor plaintiff or a poor defendant faces
the
costs
of litigation or liability for damages.
So
stated this diffused insurance
programme is not
“less
radical” than the nationalized Bar in its
ultimate implications.
A
more leisurely examination of the other long-
range consequences
of
his insurance-for-all panacea convinces that
this universal underwriting of all the
risks
of
litigation
and
liabilitl*
20
P.
52.
ANOTHER
JOB
FOR
JURISPRUDENCE
29
is fraught. with sinister consequences more penetrating than the
subsidized Bar.
It is true tliat the insurance palliative does not necessitate the
nationalization of the
Bar,
but
it
certainljr does liquidate the legal
profcssion bj* substituting a super-leviathan of gargantuan dimen-
sions in its placc. It ncccssitatcs the iristitiition of
a
pyramid
of
boards
and commissions,
agriits
provacciferrv
and State Gestapos all equipped
to put into full force and effect the insurance behemoth; not by
a
trial of the cause of action in an ordinary judicial manner but
mirabile
diclu
by means
of
prcliminary hearings held before some vague official
or
quasi-oilicial appointed not to decide the issue but to decide whether
the claimant has
a
sight to litigate the issue at the expense of the
State-insurance Santa Claus
!
Mr.
Harvey with stark realism faces
the probability (one might say certainty) of a11 avalanche of fake
claims, perjured statements and fantastic stories of feigned wrongs-
all to be paid
for
bv the rlcphaiitinc insurancc: corporation which
baIloons fortli under tlir nqic
of
liis furmula. Instcad
of
these
multitudinous claims being litigated
owe,
they Inmt now
be
litigated
twice:
First, before the quasi boards who must be persuaded that
the claim
is
a
mevitorioics
one before suit may be filed, and again in
the regular trial which follows. This double-decked investigation,
litigation and examination before final adjudication will cost money,
a
lot of money. Mr. Harvey frankly admits tliat pertinent fact. His
simple and rather naive avoidance
of
the costs of the operation is
summed up in the following sentence: “At any rate, the difficulty
of
squeezing money out of the community where
it
was really wanted
has never yet been found to be insuperable.”
After offering his proposal of staggering dimensions,
Mr.
Harvey
concedes that this cover of insurance protection is
going
to cost money,
lots of it. He
is
quite content to raise the umbrella of all-over
protection
and
then to walk away. Let someone else get the funds
and
fix
the rates. Not only are these financial difficulties admitted
and unsolved by Mr. Harvey, but he also freely confesses that there
are other objections to be eliminated. Then follows his surprising
solution
:
If
they [difficulties of his insurance plan] are adjudged
to
be fatal to this scheme, let those who advance them think of another
scheme.” This last bit of juristic pleasantry deserves
a
brief develop-
ment before moving forward to the next point.
Mr.
Harvey having
proposed
a
definite programme, his programme, and having admitted
the difficulties and deep-rooted objections to his programme, concludes
by
the observation that
if
his scheme
is
unworltablc let his opponents
think
of
some other scheme to take the place of the common
law.
The opponents might properly retort that until and
unless
JIr. Harvey
and the critics of the present legal system
are
able to providc
a
better
one, the only sensible thing to
(lo
is
to leave the present system
stand.
The burden of proof remains throughout
011
tlic)
critics
of
the
common-law techniques and this burden of proof
has
not been
30
MODERN LAW REVIEW
March,
1945
sustained. Mr. Harvey’s insurance proposal creates a sprawling edifice
of State insurance with top-heavy boards and bureaus, permeated with
governmental inefficiency and bureaucratic bungling-all offered in
the name of
comparative simplicity.”
Mr.
Harvey follows the functional pattern throughout liis paper.
First he criticizes in severe terms the breakdown of common law.
He then proposes to offer a prescription and cure. Dealing with
grittering generalities, skeletonized proposals, mentioning the major
difficulties, but skirting carefully the solution of the same, he
asks
the dwellers in the common law household to tear down a six-century
edifice and to erect a house whose plans and specifications are not yet
in the blue-print stage. When faced with the yawning chasm between
his plan and performance,
Mr.
Harvey walks away with tlie rejoinder
:
“Very well.
You
find
us
a
better plan.”
To
which the harassed
traditionalist meekly retorts
:
“But this reform agitation comes from
you-not from me. It is your task to defend pour proposals for an
effective reform of the common law.”
Reviewing together the three proposals herein made by Mr. Harvey
:
(I)
The simplification of procedure
;
(2)
the nationalization of the Bar
;
and
(3)
litigation and liability insurance, the following conclusion
seems to be appropriate. Not one of these proposals singly, nor all
three together, settle or even touch directly the main complaint which
Mr. Harvey makes against the common law as a “hotch potch of
barbarities, accidents, evasions, customs, prejudices, horse-sense and
nonsense, which we call the Common Law.
.
.
.”
It
is
respectfully submitted that his proposed simplification of
legal procedure could be accomplished, a nationalized Bar in full
effect and his insurance plan in execution; and yet all these major
reforms would in
no
wise change the
transcendental nonsense
of
the common law
so
bitterly assailed by Mr. Harvey.
In his concluding paragraph
Mr.
Harvey suggests that the academic
jurist should descend from his Olympian fastness, to divert his atten-
tion from abstract jurisprudence and to work at the level of the
ordinary citizen. While this paper has been devoted in major part
to a criticism of Mr. Harvey’s particular proposals, it is conceded that
his criticisms of the common law indicate that there is a
“job
for
j
urisprudcnce to do.
But tlie suggestion is made that there is “another job
for
juris-
prudence,” and particularly for our legal reformers, who are sometimes
prone to confuse change with progress. Marx somewhere complains
that Savigny gazed
so
long at
the
source of law that lie forgot the
stream-a remark that Blr Harvey would doubtless applaud
as
an
accurate appraisal of the moon-gazing propensities of conceptual
jurists. But
a
very liberal paraphrase
of
the Marxian comment niight
warn that the pragmatist
arid
the realist reformers in the law are
gazing
so
intently at thv r~iircnt
stream
of the law that they have
forgotten its sources. In fdcf
,
the extremists are contending that there
are no sources of thr law
;
that law is an individualized product of t1.e
STATUTORY
POWERS
OF
LOCAL
AUTHORITIES
31
courts handed down from case to case and from day to day without
any weighted reference
to
past precedents or general principles
Justice Holmes once stated that general propcsitions do not decide
cnncrete
cavs,
but
the
fact-collector,
who
ovcr-emphasizes concrete
circumstances, divorced from principl~
or
pcedeni
,
is
apt
to
find
himself ininierswl
in
a
mass
of
puny prtici~lais without order, plan
or
objective. The
“job”
for
jurisprudence which Mr. Harvey proposes
for the concept-ridden jurists of traditional law is the descent from
the stratosphere of abstractions to the ground-level of actuality,
a descent from the heaven of legal concept to the “pedestrian level of
life.” Another
“job”
has come into being with the arrival of prag-
matic, realist and experimental techniques. In place of the Holmesian
aphorism that the “life of thc law has not been logic;
it
has been
experience,” the common
1
aw defender offers the Thomistic substitute
proposal that the life of the law has been logic
and
experience. While
the common law devotee is not averse to all changes in the comnxn
law, he suggests that it is not only helpful but necessary to know where
we are going before we launch a new juristic system. Such appraisal
and evaluation are frequently absent
in
the tentative programmes of
our legal reformers. Substantial evidence of
this
fault seems to be
present throughout Rlr. Harvey’s scholarly paper.
WALTER
B.
KENNEDY*
*
Professor
of
Law
and
Acting Dean,
Fordham
University
School
of
Law.
New
York
City.
STATUTORY
POWERS
AND
LEGAL
DUTIES
OF
LOCAL AU7‘HORITIES
HE
Law Reports show
a
steady increase in actions for damages
brought against Public Authorities arising out
of
the exercise
of some public function.
It
is,
of course, in no way sur-
prising that, with the vast increase of public services and duties-
greatly augmented by war-time responsibilities imposed
upon
local
authorities-the possibilities
of
injury to private persons should also
increase.
It
is rather more surprising that the great legal and juris-
prudential problems of this development have hardly been noted.
Volumes of discussion about the modern interpretation of the rule
of law have centred round the more spectacular features, such as the
archaic immunity
of
the Crown from tort actions, and the increase
of judicial
or
quasi-judicial functions vested in administrative authori-
ties or special tribunals. At first sight, the increase
of
actions for
damages against public authorities does not seem to call
for
comment.
A Borough or County Council, a Catchment Board, the
B.B.C.,
the
Port
of London Authority, constituted as juristic persons, are fully
liable, like any other legal persoil; this seems to vindicate, riot to
challenge the orthodox interpretation of the rule of law.
A
rnor,-
thorough examination reveals a different state of affairs. Time and

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