Evening star. [volume] (Washington, D.C.) 1854-1972, 1949-01-03

miniStratiOn OF the American Bar Associd-
| tion This address tCdS published in the
| December issue OF the Journal of the Anlert-
| can Judicature Society.
! All of us in recent years have heard and
read many criticisms of the dissenting or con-
curing opinion. Separate opinions have often
been deplored. Courts have been severely
criticized for toleratjng them And that Is
| why I rise to their defense.
Holmes perhaps better than any one either
before or after him. pointed out how illusory
was the lawyers search for certainty. Law
is not what has been or is-law in the lawyers
sense is the prediction of things to come, the
prediction of what decree will be written by
| designated judges OH specified facts. In lay
mans language law is the prediction of what
! will happen to you if you do certain things.
This was the lesson Holmes taught; and every
lawyer on reflection knows that it is sound.
There are many reasons why this is So No
matter how clear and precise the code or
other legal rule may be, the proof may be
surrounded with doubt. And even though the
proof is clear to the advocate, the credibility
of the witnesses may raise serious questions
for Judge or jury. Uncertainty is increased
when new and difficult problems under am
biguous statutes arise And when constitu-
| tional questions emerge. the case is as we
lawyers say, at large" For the Federal Con-
Stitutlon, like most State constitutions is not
q code but a rule of action-a statement OF
philosophy and point of view summation OF
general principles. delineat ton of the broad
outlines of regime which the Fathers de-
signed for us.
These are the things that Holmes summed
up when he described the lawyers continuing
and uncertain search for certainty. They in
deed suggest why philosophers of the demo-
cratic faith will rejoice in the uncertainty OF
tie law and find strength and glory in it.
Certainty and unsnimity in the law are pos
sible both under the Fascist and Communist
systems. They are not only possible they are
Indispensable; for complete subservience to
the political regime is sine qua non to judi
cial survival under either system. One cannot
imagine the courts of Hitter engaged in pub
lie debate over the principles Of Der Fuehrer.
with minority OF one or four deplorlng or
denouncing the principles themselves. One
cannot imagine judge of Communist court
dissenting against the DEGREES of the Kremlin.
Disagreement among judges is as true to the
character of democracy as freedom of speech
itself. The dissenting opinion is as genuinely
American as Otis denunciation of the general
warrants as Thomas Paines, Thomas Jef1er-
sons, or James Madison's briefs for civil
liberties.
Democracy Means Variety.
Democracy, like religion, is full of sects and
schisms. Every political campaign demon
strates it. Every session of the Legislature proves
it. No man or group of men has a monopoly
on truth, wisdom or virtue. An idea once
advanced for public acceptance, divides like an
amoeba. The ifs and butts and howevers each
claim part; and what was once whole is
soon carved into many separate pieces. some
of which are larger than the original itself.
Those who have followed the legislative
process can produce examples end That
process is one of compromised qualifying
absolutes, of creating exceptions to general
rules At times the process of compromise
Cancellation involves Well-ngh impossible ad-
justments The clash of ideas may be so
violent thai meeting of the minds seems out
of the question Where such cleavage is great
and involves major issues it may even tear a
society apart. BY the same token it can stop
the legislative process or render it impotent
and thus deprive society of lawful and nom
violent means and methods of solving its prob
lens. When the breach between the pros and
cons is not too great, the legislative process
functions. Even then, the compromise be-
tween competing ideas that energies in the
final legislation may be more apparent than
real. For the legislative solution is often to
write two opposing ideas into statute With
out that solution enactment of the measure
might. indeed, be impossible.
Ard so the bill becomes the law and the law
arrives before judges for interpretation The
battle that ragged before the LEGISLATURE is now
transferred to the court. The passage of the
legislation Quoted the conflict only TEMPORARILY
1t breaks out anew in the process of interpreta-
ton In the courts. A storm hits the court
room. and the advocates take up the fight
where the legislators left off The same cleav-
age that appeared in legislative halls now
shows up among the judges Each side has
eminent authority for its view since two con-
f1lcting ideas found their way into the legisls-
ton. 1t Is therefore easy for Judge or LAWYER
or editor to accuse the Judge who takes the
opposing view, of uSurpng the role of the
Legislature. more honest. a more objective
view would concede that Interpretation has
legislative as we'll as judicial characteristics
1t cannot be otherwise where the LEGISLATURE
has left the choice of competing theories or
ideas to the judges.
The legislative process breeds dissenslon
among Judges in other ways A hiatus may
be left in law. The crucial matter may have
been too explosive for the legislators to handle
For that or for other reasons they passed 1t
over entirely or left it vague and undenned.
The necessity to fill in the gap is then pre-
sented to the court. And the judges are left
at large in a field that the legislature lacked
capacity to define. To degree the same
problem is presented to the judiciary when
vague and general language is employed like
the words fair or lust" or equitable" The
law is not series of calculating machines
where definitions and answers come tumblng
out when the RICH: levers are pushed.
Judges reaction to vague statutory language
is bound to be hike his reaction to the general
tiles of constitutional clauses. The language
that he CONSTITUTES gathers meaning and over
tones significance and relevancy in terms of