None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do.The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.We like to figure to ourselves the processes of justice as coldly objective and impersonal.The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter.That is an ideal of objective truth toward which every system of jurisprudence tends.It is an ideal of which great publicists and judges have spoken as of something possible to attain."The judges of the nation," says Montesquieu, "are only the mouths that pronounce the words of the law, inanimate beings, who can moderate neither its force nor its rigor." 28 So Marshall, in Osborne v.Bank of the United States, 9 Wheat.738, 866: The judicial department "has no will in any case....Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law." It has a lofty sound; it is well and finely said;but it can never be more than partly true.Marshall's own career is a conspicuous illustration of the fact that the ideal is beyond the reach of human faculties to attain.He gave to the constitution of the United States the impress of his own mind; and the form of our constitutional law is what it is, because he moulded it while it was still plastic and malleable in the fire of his own intense convictions.
At the opposite extreme are the words of the French jurist, Saleilles, in his treatise "De la Personnalité Juridique": 29 "One wills at the beginning the result; one finds the principle afterwards;such is the genesis of all juridical construction.Once accepted, the construction presents itself, doubtless , in the ensemble of legal doctrine, under the opposite aspect.The factors are inverted.The principle appears as an initial cause, from which one has drawn the result which is found deduced from it." I would not put the case thus broadly.So sweeping a statement exaggerates the element of free volition.It ignores the factors of determinism which cabin and confine within narrow bounds the range of unfettered choice.
None the less, by its very excess of emphasis, it supplies the needed corrective of an ideal of impossible objectivity.Nearer to the truth, and midway between these extremes, are the words of a man who was not a jurist, but whose intuitions and perceptions were deep and brilliant--the words of President Roosevelt in his message of December 8, 1908, to the Congress of the United States: 30 "The chief lawmakers in our country may be, and often are, the judges, because they are the seat of authority.Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making.The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions."I remember that this statement when made aroused a storm of criticism.It betrayed ignorance, they said, of the nature of the judicial process.The business of the judge, they told us, was to discover objective truth.His own little individuality, his tiny stock of scattered and unco-ordinated philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside and forgotten.
What did men care for his reading of the eternal verities? It was not worth recording.What the world was seeking was the eternal verities themselves.Far am I from denying that this is, indeed, the goal toward which all of us must strive.Something of Pascal's spirit of self-search and self-reproach must come at moments to the man who finds himself summoned to the duty of shaping the progress of the law.The very breadth and scope of the opportunity to give expression to his finer self seem to point the accusing finger of disparagement and scorn.What am I that in these great movements onward, this rush and sweep of forces, my petty personality should deflect them by a hairbreadth? Why should the pure light of truth be broken up and impregnated and colored with any element of my being? Such doubts and hesitations besiege one now and again.
The truth is, however, that all these inward questionings are born of the hope and desire to transcend the limitations which hedge our human nature.
Roosevelt, who knew men, had no illusions on this score.He was not positing an ideal.He was not fixing a goal.He was measuring the powers and the endurance of those by whom the race was to be run.My duty as judge may be to objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time.Hardly shall I do this well if my own sympathies and beliefs and passionate devotions are with a time that is past."We shall never be able to flatter ourselves, in any system of judicial interpretation, that we have eliminated altogether the personal measure of the interpreter.
