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14 March 1958

To: Members of the Legal Philosophy Discussion Group
From: A.v.M.

Attached hereto are some brief remarks of mine on Lon Fuller's discussion of adjudication and a short comment by Lon on what I said. As Lon cannot be with us, he agreed to my distribution of his comment by way of a partial substitute.

I might add that many details on continental thinking on the judicial process and related institutional arrangements are given in my book, *The Civil Law System 821-84 (1957)*. A shorter version of this discussion appears in *5 Am. Jour. Comp. L. 197 (1956)*. A person interested in adjudication from a comparative perspective might find this discussion of some use.

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[L. L. F.'s comments on A. v. M.'s remarks]

Dear Arthur:

I have a great many things to say about this paper, much of them in agreement. Being unable to find you, I content myself with the following remarks about the distinction you draw between my view, which requires "an adversary presentation to a relatively passive adjudicator who decides within the framework of the argument made before him," (your language) and a more basic and simple notion that "each party has equal opportunity to present the merits of his case."

My view, as you present it, breaks down into three elements: (1) adversary presentation, (2) passive judge, (3) decision falling within the framework of the argument. Now it seems to me that (3) as a desideratum is equally demanded by any rule that gives to each party an equal opportunity to present his case. If he doesn't know what the case is, if the case is decided on considerations not discussed at the hearing by court or counsel, the opportunity to present "his case" becomes pointless since he doesn't know what his case is. The relation between my alleged advocacy of the "passive" judge and the rule that says, "hear both sides" is more complex. There are as many kinds of "passivity" as there are things to be passive about. Nothing I said would criticise a judge for stopping an argument that did not fall within the case as pleaded or stipulated, nor bar a judge from expressing opinions during the proof and argument. I did say that there were dangers where factual investigation was made informally by the arbiter before the hearing, and where he made his own determination of the issues presented by the facts. This desideratum is equally demanded by a rule that seeks to give each party a fair chance to present his case; a fair chance to present one's case at a hearing is not of much value if the case has already been decided by a cataloging process that took place out of court. Finally, as to an "adversary" presentation, I fail to see wherein this differs from the notion of *audi autem partem*. Indeed my own analysis seems to me to be just a spelling out of what is required to give meaning to that maxim. I may be wrong, or over-fussy in that analysis, but I see no such fundamental split as you do between my views and those compacted in the modest injunction, "Let each party be heard." Incidentally, I assume you would agree that this principle loses much of its meaning if neither knows what the other is arguing. If this is not known, how does one know what "his case" is? Now in some cultures, it might be thought sufficient to have the judge tell

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I.

Professor Fuller has given us a complex and subtle discussion of most difficult and intricate problems. To comment in brief compass fairly and fully on his thesis is impossible; certainly my remarks on the experience in these areas of legal systems other than the common law pretend neither to be exhaustive nor to do full credit to the Fuller analysis.

It should also be said at the beginning that I have found Lon's approach most interesting and full of suggestive insight. In what follows, the effort is to raise questions about and suggest deficiencies in Lon's paper. This is not intended to imply that his analysis is either impossible or fruitless. Quite the contrary, efforts such as Lon's are absolutely indispensable if our understanding of the adjudicative process is to be deepened.

Preliminarily, I should also say that my remarks are almost exclusively devoted to the adjudicative process on the official, governmental level. I do not know enough about the use of adjudication in private and semi-public contexts to venture into these areas.

II.

Considered in the perspective of several legal systems both in time and in space, Lon's paper raises many issues. Some of these I should like to state here with a view to suggesting the range of inquiry that would be relevant in a full testing and amplifying of the Fuller analysis. I do not attempt to discuss these issues; I shall, however, return to certain aspects of them later in my remarks.

In the first place, the paper assumes a fairly high degree of differentiation in the officially sanctioned processes of governing; the adjudicative and legislative processes are contrasted in some detail, less attention being paid to the executive-administrative process. This differentiation raises various problems:

At what stage of social development does differentiation begin to be marked?

Is the progressive differentiation of governmental processes that we have witnessed in the West a manifestation of a society in which social and economic power is more broadly

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based, the complexity of the means of production has increased
enormously, and in which there has been a drastic decline in
importance, in comparison with the law, of alternative means
of social control (e.g., a larger family unit, a close-knit homo-
geneous community)?

Does our modern, Western concern to give some rational
basis to the exercise of power foster a related specialization
of the processes through which the power of organized society
is exercised, with the various differentiated processes developed
in response to this felt need each molded in some measure by
the rational basis (or bases) on which the process in question
is built?

Will we see in the future a still further differen-
tiation and specialization of the processes and procedures
through which society governs itself?

Finally, what conditions and circumstances produce
the particular type of differentiation that we, in Western so-
cieties, accept as normal? Does an adjudicative process having
the general purposes and characteristics described by Lon inevi-
tably emerge in a mature society or is such a process bound up
with the social structure, economic system, traditions and values
today characteristic of Western civilization?

Another area of difficulty is the problem of how far
legal systems, in particular, civil-law systems, assign to the
adjudicative process the purposes that Lon believes this process
must serve; and, to the extent that more or less than Lon sug-
gests is committed to the process, how is the area of difference
to be explained, what does it signify with respect to the Fuller
thesis?

A final issue to be suggested relates to the means
and procedures through which the adjudicative process operates
in other legal systems, especially those of the civil-law. Lon
suggests that adversary presentation, in which the person adju-
dicating remains relatively passive and decides within at least
the general framework of the argument presented, is essential
to the internal morality of the adjudicative process. In other
words, it is asserted that adjudication loses its claim as a
process to men's loyalty and support to the degree that the
adversary quality of the proceeding is diminished. To what
extent does empirical observation support this assertion; and
what elements in tradition and in present day conditions explain
such differences as are here found in the operating attitudes
of contemporary legal systems?

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III.

I turn now to a brief consideration of some aspects
of the issues suggested above.

Lon's discussion is fullest in its consideration of
"the forms of adjudication," by which is meant "the forms or
procedures which clothe the process of adjudication itself...."
(p. 5) In his conception, a process of adjudication without
certain forms or procedures lacks internal morality, that is, a
claim to men's allegiance as a process. The forms on which Lon
lays principal stress are: (1) "that minimum, formal rationality
which demands a like treatment of like cases" (p. 11); the
application of "some general principle or standard by which
'like cases' and 'like treatment' can be defined" (p. 11);
(2) an adversary presentation to a relatively passive adjudicator
who decides within the framework of the argument made before
him (pp. 15, 18, 20-1).

A. The first of these forms seems fundamental. It
is hard to conceive of any process for resolving disputes and
formulating rules and principles to regulate conduct that could
be characterized as adjudication which lacked a basic commitment
to treat like cases alike. Two points are, however, suggested
by the experience of non-common-law legal systems:

First, the elements considered in determining when
cases are alike vary markedly in different societies. Western
societies, for example, appear to crystalize points of similarity
and difference on a higher level of generality than do oriental
societies. The West thus tends to resolve disputes without
taking into account the particular social and economic backgrounds
of the persons directly involved. In Japan, such points of
similarity and difference have traditionally been considered in
adjudicating.¹ The adjudicative process does not lose its formal
rationality in such a setting. However, it may well be that the
process' internal morality is less dependent on a rational ele-
ment, the parties tending to accept the result more as a conse-
quence of the structure of society than as an application of
principle to resolve a question arising between individuals.

1

Today, the law courts, operating in terms of Western concep-
tions, give less attention to these considerations than does
the society. One consequence is that informal, non-govern-
mental processes of compromise have a stronger hold on the
society's allegiance than does the governmental adjudicative
process.

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Second, the particular type or quality of rationality
associated with the internal morality of an adjudicative process
seems to vary in different societies and at different times in
the same society. Thus, in common and civil law systems alike,
there have been times in which great emphasis has been put on a
rather formal, rigid rationality. For example, in both systems,
a doctrinal, abstract, and deductive method came to dominate
legal discussion in the last half of the nineteenth century.
The writings of such men as Langdell in the United States,
Aubry and Rau in France, and Windscheid in Germany proceed to
a considerable extent on the premise that legal relations and
concepts have an essential nature. From these legal entities,
existing independently of the practical requirements of individual
fact situations, all determinations in individual cases flowed
through a process of deduction. Today, very different formula-
tions are current in all these systems. For example, present-day
German theory justifies a court, applying a code provision, to
go so far as to interpret the text in terms of the intent the
legislator would, hypothetically, have if he were legislating
at the present time with knowledge of contemporary conditions.

Do these shifts in attitude with respect to the
type and quality of rationality that the system at least formally
purports to seek,² have any significance for Lon's analysis?
These systems' official positions show a movement away from
formal, or apparent, rationality towards what might be called
greater substantive rationality. Does the adjudicative process
today have as a result a stronger hold on men's allegiance?
This question would seem to involve use in issues that Lon did
not explicitly consider.

Lon, as I read his paper, tended to think of the
internal morality of the adjudicative process from the point of
view of a person presently a party to a proceeding, saying little
about the society's general evaluation of the process as a social
instrument. In considering the issue raised above, however, it
may well be necessary to begin with the general attitude of
society since that attitude shapes to a degree the conception of
rationality held by the individual litigant, creating at the
same times expectancies as to the way the process operates.

2

In speaking of the kind of rationality a common law system
seeks to obtain, the effect of trial by jury cannot be left
out of account. To a degree, the effect of jury trial is
to dilute legal rationality in terms of particularized social
and economic considerations to which the law pays little or
no attention. Consequently, a party's acceptance of the
result is less easily grounded on the process' rationality.

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A formal conception of rationality is congenial to a system that does not wish to have, in any large measure, the growing point of the law in the courts. Basic to less formalistic conceptions is a willingness on society's part to entrust the courts with a more creative function, - a function that is, in some sense of the term, legislative. Of course, the very nature of the adjudicative process is such as to preclude an adjudicator in any system from acting with the full scope and freedom of the legislator. However, in my opinion, nothing inheres in the adjudicative process as such that predetermines the attitude of a given legal system within a broad spectrum between relatively mechanical adjudicative activity and highly creative activity. A society's attitude on this matter would rather appear to derive in large part from historic experience, in particular, the relative success of different forms of social ordering in handling emerging problems. In the period before the French Revolution, French society came to consider the courts as essentially obstructionist. A natural reaction in the early years of the 19th century was to seek to remove from them all policy judgments. In more recent times, the French legislature has shown itself incapable of facing and resolving the society's problems; a change in attitude towards the adjudicative process is perhaps a natural corollary. These few observations, of course, do no more than suggest a very large problem; they may, however, indicate that much of our thinking about the adjudicative process derives from the society's historic experience with the various techniques for ordering available to it.³

B. Lon's preoccupation with the immediate parties to the proceeding may also color his insistence on adversary proceeding before a relatively passive adjudicator who decides within the framework of the argument made before him. It is here that I have the greatest difficulty with the Fuller analysis. Lon has identified what may be one of the drives inherent in an adjudicative process. But, at least in Western societies, a

3

In discussing these remarks with Henry Hart, Henry raised the point that a certain range of issues cannot be effectively handled in any society by general enactment. One of the most interesting confirmations of the point that I know is the complete failure of the system instituted in 1790 in France whereby, in the event that a difference persisted between the court of appeal and the highest court (the Cour de cassation) on a point of law, the matter would be referred to the legislature to obtain a ruling on the guiding principle to be applied. The arrangement was abandoned in 1837. See generally von Nehren, *The Civil Law System* 849, note 106 (1957). A full dress study of the French experience between 1790 and 1837 might be most revealing; no such study is known to me. Another demonstration of the absolute limitations

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drive towards an informed decision within a context in which each party has equal opportunity to present the merits of his case seems equally basic. Indeed, is not an adversary procedure in large measure only a technique by which it is sought to forward this last mentioned set of purposes?

In all events, a continental system such as the German, while recognizing the principle of party-presentation, strikes a balance in which the judge is far more active, and far greater responsibility rests on him to search out the truth, than is the case in American procedures. The judge conducts,

on the effectiveness of general enactments is the complete failure of the German Civil Code of 1900 to achieve "logical completeness." The German courts very soon found themselves involved in adjusting and articulating principles to regulate conduct and today German theory has largely abandoned the attempt to bar absolutely the courts from this field. See generally id. 327-32; for a striking example, see id. 724-55.

My remarks in the text above were not directed to distinguishing and blocking out this area of absolute limitation on the legislative process and the corollary area of absolute judicial involvement in what can be called "law-making" in a broad sense. The remarks were rather intended to suggest that where the legislature is relatively ineffective, for whatever reason, in laying down general principles to handle problems within its potential orbit, the courts will be pulled in, with consequences perhaps both for their procedures and their general position in the society. Moreover, of course, the principles articulated through a course of judicial decision will probably be quite different from what the legislature would have produced if it had acted, but this is another discussion.

A neat example of what I have in mind at this point is the contrast between the handling of the basic principles to regulate liability in automobile accidents in French law and in German law. The Germans legislated comprehensively in 1909; the French legislature, in spite of various attempts, never produced guiding principles. The French courts eventually took over the job, developing a system of strict liability out of code provisions in a system in which tort liability was historically based on the principle of "no liability without fault." See generally id. 367-414 (French developments), 436-45 (German developments). My own feeling is that the judicial process is today valued rather more highly in France than it would be if the legislature had been more effective. Of course, the challenge is not without dangers - if the courts push to handle matters which are, for one reason or another, outside of their real competence, or if they do the job poorly within the area in which they could do it effectively, they will as an institution reap only disadvantage.

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for the most part, the examinations of witnesses and actively manages the litigation. He is charged with a duty to clarify the issues and to suggest relevant matter not brought forward by the parties. Finally, the principle *jura novit curia* obtains, though the legal writers urge the courts to avoid where possible deciding a case on a point of law wholly unanticipated by the parties.

Does it follow that the German adjudicative process, as a process, has a weaker hold on men's allegiance than does its American counterpart? The question is unanswerable in the sense that the reality in question is not susceptible of precise measurement and, even if it could be measured, a demonstration that the rating achieved derived from the procedural differences under discussion would hardly be feasible. Nonetheless, several observations may be suggestive on this point.

First, Lon's emphasis on a strictly adversary procedure seems to premise a society in which effective legal representation is available and each party has a roughly equal opportunity to obtain such representation. This is in part an economic question; if the normal litigative situation is such that one of the parties tends to be at an economic disadvantage procedural arrangements of the German type would seem more ant than those utilized by the common law. The general character and quality of the bar also enters in. If the economics of the bar are such that a lawyer can rarely prepare a case thoroughly, the value of an adversary procedure would seem substantially diminished.

Second, from the point of view of both the parties involved in litigation and society in general, the value placed on an adversary procedure is connected with basic attitudes towards the individual and towards authority. An adversary system is congenial in a society in which there is a high degree of individual self reliance and a correspondent reluctance to rely on governmental mechanisms.

Third, it can also be suggested that Lon's emphasis on a strictly adversary proceeding is, other things being equal, most appropriate for a society that, by and large, denies a creative function to the adjudicative process. Where courts not only administer, but also adjust and develop, a body of rule and principle there is a general social interest in having the underlying facts and policies made clear. This can call for a fairly active judge. It may also justify the French institution of allowing a governmental official, the *Procureur général*, to appear in private, civil litigation to present society's position on the matters in issue. Of course, the parties directly involved may feel this as an interference, but the adjudicative process' claim to the allegiance of the society at large depends in part on a conviction that the courts are doing their best to discharge the creative task assigned them in as informed a fashion as possible.

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V.

I should like to conclude with a few remarks on what is, to my mind, the weakest point of Lon's paper, that is its tendency to consider the adjudicative process solely under the aspect of resolving a dispute (whether the dispute take the form of a claim or of a question of human responsibility, fault or guilt, see pp. 5-6) between the parties immediately involved. Almost no attention is given in the paper to the adjudicative process from the point of view of the articulation and modification of rules and principles to regulate and guide conduct. Perhaps Lon intended to come to this in his full discussion of "limits of adjudication" which he had to omit (p. 27), though his preliminary discussion of this question (pp. 5-6) does not suggest the sort of discussion I have in mind.

Considering the adjudicative process under the two aspects of resolving disputes between parties and articulating and modifying rules and principles to regulate and guide conduct, an argument can be made that the second is quite as important as the first. If so, the institutions and processes of the adjudicative process should reflect the requirements of both areas of activity, seeking solutions appropriate to both. Thus, even if Lon has described an ideal system from the point of view of resolving disputes between parties it would not follow that he has proposed the ideal adjudicative process. Similarly, the hold that an adjudicative process has on men's minds should be assessed from the point of view of the parties and of society as a whole. Society may well be as interested in the creative results achieved by the process as in the resolution of the particular dispute between the parties; nor will the parties, though their principal concern is doubtless in the latter area, be wholly unconcerned with the former. In other words, these two areas of activity are inextrably interwoven in the adjudicative process, at least on the governmental level, as it functions today in both civil and common law systems.

Arthur von Mehren