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HARVARD
LAW REVIEW
VOL. XLV FEBRUARY, 1932 NO. 4
THE ROLE OF SUBSTANTIVE LAW AND
PROCEDURE IN THE LEGAL PROCESS
HERE seems to be a general (^) assumption today that the "Science of Law "^ is not adequately performing (^) its func- tion in the judicial (^) process. When a great lawyer can voice the general opinion of the bar in (^) stating that the confusion and un- certainty caused by a vast (^) mass of decisions and principles is growing worse from year (^) to year,' it is inevitable that various conflicting attitudes toward this science (^) should take the place of a former uncritical acceptance. The (^) conflict may be described, somewhat inadequately,^2 in a few phrases: (i) A struggle to preserve (^) old creeds against a growing skepticism; (2) An unconstructive skeptical attitude, (^) either amused or discouraged, which (^) proposes nothing; (3) An enthusiastic search for eternal (^) verities through new methodologies on which there is no agreement. This situation makes the law today (^) the most fascinating of the social sciences.' Nevertheless, from the point of view of the prac-
1 Elihu Root, quoted in American Law (^) Institute Is Organized (1923) 9 A. B. A. J. '37. 2 The impossibility of making accurate generalizations about schools (^) of legal thought today is shown by Llewellyn in Some Realism about Realism- Responding to Dean Pound (^) (193) 44 HARV. L. REV. 1222. One may nevertheless be permitted to give one's general impressions. 3 " Our times may well come to (^) be named, by future dealers in half truths, the Tired Age. Disillusionment is a mood of fashion as much as a form (^) of ennui after
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tical administration of justice, the undermining of old values
seems to the writer to be one of the factors in a certain loss of
prestige of the courts. In institutions, just as in individuals, the
loss of self assurance is always followed by a loss of power. And if certain institutions, such as the courts or the church are not supported by a generally accepted creed or philosophy, they lose the peculiar prestige and respect to which they owe their in- fluence.^4 Thus our modern skepticism about substantive law has brought us face to face with an ancient paradox which may be expressed in this way: If courts - or at least persons who (^) deal with courts - did not so firmly believe that justice was dispensed according to the inexorable dictates of impersonal logical science, our machinery for the administration of law would not exist as we (^) know it today. Just as an individual must cherish dreams and illusions, so also must his judicial institutions. For this reason judges, at least (^) while they are speaking from the bench, must talk of substantive law as a scientific body of principles which govern society. (^) This unquestionably has a pro- found effect not only on the attitude of society toward them, but also on their attitude toward the problems which they attempt to solve. A free people resents government by individuals. They insist (^) that they will only obey the self-imposed restraints which they see fit to impose on themselves. The method by which courts are supposed to eliminate the personal and arbitrary ele- ment from their decisions is supposed to be found in a science of substantive law. Without such a conception the present power and prestige of an independent judiciary would be difficult to maintain. In the discussion which (^) follows, the writer assumes without argument that the work of most legal scholars will be directed
the war's great effort. Whatever the cause, our politics are devoid of ardor (^) and social reform has lost its romance. Such being the mental climate, one would expect jurisprudence to be in the doldrums and to earn its title as the dreary science. Alas for these generalizations about the main currents of thought! (^) The waters of law are unwontedly alive. New winds are blowing on old doctrines, the critical spirit infiltrates traditional formulas, philosophic (^) inquiry is pursued without apology as it becomes clearer that decisions are functions of some (^) juristic philosophy." (Italics mine.) Frankfurter, The Early Writings of 0. W. Holmes, Jr. (931) 44 HARV. L. Rxv. 717. 4 Cf. COOLM, SocIAL PROCESS (^) (1927).
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or restate any part of our judicial system. It can not be made by judges engaged in the (^) actual operation of a system. It must, therefore, be done by (^) scholars who are, or at least should be, studying that system objectively. The writer will (^) therefore attempt to examine our judicial organization in order to ascertain the part (^) which "substantive law" and "procedure" are playing or may play in its operation. It is necessary at the outset to point out that in considering "sub- stantive law" we have in mind only (^) that science of arrangement and interpretation peculiar to courts, and not the various other forms of social compulsion ' which exist in every society whether it has an independent (^) judiciary or a despotism. There are thou- sands of rules, statutes, institutional habits, directions - (^) some actively enforced by all sorts of agencies, others dead, (^) others occasionally (^) invoked - existing under every form of govern- ment.^6 They (^) are often called "law." They are, however, not that science of law with which law schools and legal scholars are concerned when they study bodies of learning such as torts, con- tracts, (^) trusts, equity, all bound together by the clasp of jurispru- dence. We may be permitted to ignore the social compulsions of other institutions when we are examining courts, because those institutions are no part of (^) the peculiar machinery of the courts and are only an incidental part of the study of "law." '^ The substantive law which is being restated for the guidance of judges does not deal with (^) the changing mass of directions and rules which harass every organized society, but with a science (^) of fundamental principles peculiar to courts. Other departments of the govern- ment get along without these concepts. No organized body of
5 See Moore and Hope, An Institutional Approach to the Law of Commercial Banking (1929) 38 YALE L. J. 703. 6 Moore, RationalBasis of Legal Institutions (1923) 23 COL. L. REv. 609. Here Mr. Moore sets out the importance of institutional habits as distinguished from legal principles. 7 For some purposes any definition of (^) "substantive law" which puts the entire emphasis (^) on the so-called "science of law" and ignores definite directions and institutional habits would be too narrow. For the purpose of an objective examina- tion of courts, however, we wish to deal with the peculiar conceptions which are incident (^) to an independent judiciary. A rule receives very different treatments when applied by an executive and applied by a court. We are examining the con- ceptions which cause the difference in treatment, not the (^) rule itself. "... decisions are functions of some (^) juristic philosophy." See Frankfurter, loc. cit. supra note 3.
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learning concerning rules of the Postmaster General's depart-
ment in action is ever opposed to those rules in books. Realists
and fundamentalists do not clash over how the United States
Steel Company is applying its rules, standards and principles,
with which it is bountifully supplied. With the rules and direc-
tions which exist in every form of government or social control
we are not here concerned. We are only^ examining^ the^ function
of that science of law, usually referred to as substantive law, and
its inseparable partner, procedure, which has its peculiar utility
in connection with courts.
In examining our judicial institutions objectively, instead of
classifying doctrines, we will classify the persons connected with
them according to their functions. For our purposes, we propose
a division into^ (i)^ lawyers,^ (2)^ judges,^ who^ sometimes^ sit^ as
courts," sometimes as "commissions," and sometimes as " bu-
reaus," and (3) legal scholars. We find them all working in a
sort of verbal haze which deepens as^ we^ approach the^ courts,
becoming almost impenetrable when we reach the legal scholars.
Lumped together these individuals make up our machinery for
the administration of justice, as opposed to the mere enforce-
ment of rules and the determination of disputes. We will consider
them separately in their relation to the concept of substantive
law and its handmaiden, procedure.
The Lawyers. It is not so hard to understand what the lawyers
are doing, in spite of the fact that they use a rather complicated
language, and disappear from time to time into the haze to at-
tempt to obtain the blessing of the judges on their completed
work. Their mode of speech may be involved but their objects
are generally quite understandable. They are advising people
how to trade, to build, or to live so that their neighbors may not
be able to invoke higher governmental authority against them,
and in this pursuit they invoke many formulae and incantations
which unfortunately are not uniformly successful in obtaining the
desired result. However, it is easy to see at least what they are
trying to do, and to know whether they have succeeded or failed
at it, because their object is usually the very definite one of help-
ing a particular individual in a particular thing. But when they
become engaged in an effort to fulfill their duty as " officers of the
court" their objectives become vague, and it is difficult to tell
SUBSTANTIVE LAW AND PROCEDURE
wavering over his own concepts. It is the assertion of men who know that all right-thinking people must necessarily agree with them. Compare a great lawyer speaking on the recall of judicial decisions, on the assumption that such a thing was impossible in a civilized community, with Reverend Samuel Miller, speak- ing at Princeton, nearly one hundred years before. "We must choose between having prescribed rules of right conduct, binding in every case so long as they exist, even though there may be occasional inconvenience through their restraint upon our freedom of action, and having no rules at all to prevent us from doing in every case whatever we wish to do at the time.... A sovereign people which declares that all men have certain inalienable rights, and imposes upon itself the great impersonal rules of conduct deemed necessary for the preservation of those rights, and at the same time declares that it will disregard those rules (^) whenever in any particular case it is the wish of a majority of its voters to do so, establishes as complete a contradiction to the fundamental principles of our Government as it is possible to con- ceive. It abandons absolutely the conception (^) of a justice which is above majorities, of a right in the weak which the strong are bound to respect. It denies the vital truth taught by religion and realized in the hard experience of mankind, and which has inspired every constitu- tion America has produced and every great declaration for human free- dom since Magna Charta -the truth that human nature needs to dis- trust its own impulses and passions and to establish for its own control the restraining and guiding influence of declared principles of action." 10 The Reverend Miller in 1826 said: "ExODUS, XXXII. 26. "Then Moses stood in the gate of the camp, and said, Who is on the Lord's side? "When this solemn question was asked, the camp (^) of Israel was in a very awful situation. Moses had been in the Mount, conversing with God, (^) and receiving the Law from His lips, forty days and forty nights.... 0 what an amazing scene was here! That the very people who, a few weeks before, had witnessed the wonderful displays of Divine 20 Quotation from Root in Thayer, Recall of .Tudicial Decisions, Sen. Doc. No. 28, 63d Cong. ist Sess. (1913) 9. The writer hastens to point out that he means no criticism of such a speech. Another kind of speech would not have had its effec- tiveness. It is the fact that such speeches are effective which illustrates our attitude toward courts.
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power on their behalf, in Egypt, and at the Red-Sea; and afterwards the still more terrifick wonders of Mount Sinai, with the thunderings,and lightnings, and voices and earthquake. ..that this very people should so soon have forgotten all their signal deliverences, and all their solemn vows, and begged to be placed under the guidance of a dumb idol, presents an example of infatuation and depravity, as enormous as it was degrading." 11
The similarity between these two utterances is that each is adapted to the end of making the audience assume a reverential attitude toward a human institution. In the first it was the court, in the second, the church. Neither can be subject to analysis. Why should a court be so much more careful of our freedom than an administrative tribunal? Is there really less freedom in this country where it has been said that we have a bill of rights, but no rights, than in France where they claim more individual rights, but no bill? Such inquiries are beside the point. The important thing is the existence of this attitude toward our judicial institu- tion; because all that a human institution can ever be, is a group of individuals plus an attitude. With such an attitude substan- tive law begins. The Judges Sitting as Courts, Commissions, and Bureaus. Leaving our examination of the lawyers and penetrating deeper into the haze where the judges are found, we discover that certain things, which might seem elsewhere unimportant, assume a very deep significance. The name under which the judges assemble seems to control their temperaments and make them reasonable or unreasonable as the case may be. For example, if they sit as a bureau all of the bar, and even the public outside the bar, view the situation with alarm. A few bureaus are necessary, perhaps, in a complicated civilization, but if the bureaus increase in num- ber and power, we suddenly find that without knowing it we have created a "bureaucracy," which is one of the worst fates that can befall a free people. The distinction between bureaus and courts is important. Courts are bound by precedent, and bureaus are bound by red tape. Of course courts are forced to follow precedent even when
11 Miller, The Evidence and Duty of Being on the Lord's Side in I TnE NA- TIONAL PRAcHxR (1826-28) 97.
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law, in which case the decision does not count and we may
ignore it.
If, on the other hand, the judges sit not as a bureau^ or^ depart-
ment but as a^ commission^ with^ quasi-judicial^ powers,^ the^ danger
is not so great. Nevertheless it^ represents^ a tendency^ which^ de-
serves careful scrutiny, and^ we^ must^ be^ at^ all^ times cognizant^ of
just where it is leading us. The suspicion that has greeted com-
missions, to which have been entrusted matters of^ public^ impor-
tance, never quite disappears until the commission is firmly estab-
lished, and the dangerous tendencies of such movements are
constantly talked over for a long time afterward.
The distinction between a bureau which^ is^ a^ very^ bad^ sort^ of
thing and a commission with quasi-judicial powers which is well
enough in its place is that the commission, while not exactly a
court, nevertheless is more like a court than it is like a bureau.
Therefore if we are very watchful of these commissions and see
that the inevitable mixing up of the three great branches of the
government - the executive, legislative, and judicial -^ occurs
only on lower levels, and in comparatively minor matters such^ as
the valuation of railroads, the fixing of rates, workmen's compensa-
tion, banking, taxation, trade regulation, zoning, immigration,
irrigation of arid lands, drainage, insurance, and similar things
which do not involve the^ great^ principles^ of^ freedom^ -^ as,^ for^ ex-
ample, a suit for libel and slander, replevin, or criminal conversa-
tion does - we may escape this new form of despotism. It is
particularly important, however, to have a^ law^ court^ in^ the back-
ground ready to keep in check each commission which has been
given quasi-judicial powers, because in this way the powers which
had become so muddled when passing through the commission,
again become separated and^ run^ in^ clear^ and^ separate^ streams^ and
everything becomes less^ arbitrary^ and personal and^ more^ subject
to the fundamental rules of law. Thus it is that, in examining the
individuals of our judicial system who are acting as judges, we
find that a jarring note is struck when they sit as a^ commission
and not as a court, but that with proper vigilance the thing is
being kept fairly well under control.
Turning our attention to those judges who are sitting as
CC courts" because they are the most mysterious part of the whole
judicial institution,^ we^ find^ it^ difficult^ to^ tell^ just^ what^ they^ are
SUBSTANTIVE LAW AND PROCEDURE
doing which makes them so different from other bodies. Of course
they are settling disputes, but many other persons are engaged
in this, such as officers of business corporations, bureaus, govern-
ment officials - in fact almost everyone occupying a position of
financial or business power over others has his part in the settle-
ment of disputes. It is not even clear that they are settling the
most important disputes because the more important lawyers
seem to spend very little time with them, and statistical examina-
tion of what courts do discloses the fact that much of their
business involves rather trifling matters. They are also spending
a very large part of their time forcing recalcitrant people to per-
form their obligations by means of judgments and executions,
but many other persons are doing that, in different ways, including
policemen, departments, bureaus, and officers of various kinds.
They are establishing a procedure and following precedents in
settling these disputes, but so is everyone else who conducts
continuing activity along these lines. These are all the common
functions of many institutions and certainly no system of courts
has a monopoly on them.
Yet in spite of the comparative unimportance of what they do,
courts appear to have found a way of doing it which has brought
them overwhelming prestige and respect. They seem to have
induced the feeling, even among persons who know nothing of
court methods and have never been inside a court room, that
there they will find protection. Even when they fail miserably
to give protection to someone who seeks it, such is their demeanor
and attitude that he - or at least his friends - feel that it was not
the fault of the court that protection failed. Perhaps it was the
fault of the legislature, perhaps of the jury - at least the court
did the best it could, and had it done otherwise it would have, in
some mysterious way, imperilled the whole system of protection
to others. Commissions, composed of experts, can be violently
criticized by editorial writers. But if the matter is appealed to
a non-expert court, sitting on the same question and using the
same criteria, it appears to be settled in the only way possible
under the law. Our quarrel is, then, with the law, which we must
respect until it is changed, and not with the court which applied it.
Courts are protecting the liberties of Englishmen though in
1927 they committed approximately five thousand persons to jail
SUBSTANTIVE LAW AND PROCEDURE
istic of courts. They do not, on the one hand, check the govern-
ment in its wilder flights of regulatory fancy, nor on the other
hand are they able to carry out the decrees of the government
efficiently because they are too bound down by that particularly
absurd form of rule and precedent known as red tape. Courts,
on the contrary, do not concern themselves with red tape, but only
with procedure and substantive law. Both may sometimes be
antiquated, but that is never the fault of the court, whereas the
red tape is always the fault of the bureau. Applying this principle
to the cases of the persons imprisoned for debt, we at once see
that if it had been done by a bureau it would have been an annoy-
ing invasion of personal liberty accomplished in an arbitrary way.
When it is done by the court even those in jail realize that it is not
the fault of the court, but the fault of the legislature which forced
this procedure on the court. Thus it appears that even when
courts refuse to protect the freedom of individuals they do it for
such high motives that everyone should respect them for it.
From this we may reach our final definition of just what courts,
commissions, and bureaus are.
i. A court is a body of judges whose decisions are either:
(i) right, (2) caused by the fault of someone else (usually the
legislature), or (3) unfortunate but unavoidable accidents due to
the circumstance that no human system can be perfect.
2. A bureau is a body which, if it happens to make a wrong de-
cision, has no one to blame but itself, and if it happens to make a
right decision, offers us no assurance that it will do so again.
3. A commission with quasi-judicial powers is half-way be-
tween a court and a bureau.
Our next investigation naturally leads us to inquire what pecu-
liar talisman judges who sit as courts possess which gives them
such advantages over judges who sit as bureaucrats. This ques-
tion does not detain us long because the answer is on everyone's
lips. The courts represent the supremacy of "law." It is judges
sitting as courts who guarantee us a government of laws and not
of men, whereas judges sitting as bureaus or as executives are al-
ways trying to substitute a government of men and not of laws.
The former is, of course, the better form of government because
the laws are based on fundamental principles which gradually ex-
pand to meet changed conditions, whereas very few individuals
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can be trusted with such power. Therefore the medal given by
the American Bar Association for conspicuous service in Ameri-
can jurisprudence has for its motto^ "To^ the^ End^ that^ this^ shall^ be
a Government of Laws and not of Men." In presenting that
medal for the first time in 1929 the distinguished speaker said:
"It seems to me those words have been aptly chosen because they
epitomize the whole service of Chief Justice Marshall whose head ap-
pears upon the medal. They represent the views of every man who
renders conspicuous service to the cause of American jurisprudence,
and in the last analysis, they typify the ultimate purpose and end of the
American Bar Association itself." 16
It is obvious that our belief that courts are^ the^ chief^ guardians
of the supremacy of law is the reason why we adopt such a re-
spectful attitude toward them. Yet this supremacy of law is a
vague and very hotly contested phrase, on the meaning of which
there is no^ agreement.^ It^ appears^ that^ two of^ its^ functions are:
(i) to protect us from the tyranny of the majority and (2) to
make results of disputes^ more^ logical^ and^ predictable.
The first has something to do with the interpretation of a writ-
ten constitution which is supreme in^ this country.^ However,^ it
is not clear that this written constitution itself^ is^ the^ real^ pro-
tection from the tyranny of the majority because courts in England
furnish the same kind of protection without a constitution.
In this country, of course, the constitution is above the courts,
yet, curiously enough, if at the same time we had not placed the
courts above the constitution we are led to believe some form of
tyranny would have developed. It is also interesting to note that
courts, because they represent the supremacy of law, protect us
from the tyranny of the majority, even though in most instances
the judges are elected by the majority. Bureaus, on the other
hand, are usually appointed, but because they do not represent
the supremacy of law they are less likely to^ respect^ the^ rights^ of^ an
individual against a majority than an elected judge. In France
the chief bulwark of liberty is the " droit administratif " but this
apparent paradox is explained by the Lord Chief Justice of Eng-
land in his book on the dangers of administrative law as follows:
16 (1929) i5 A. B. A.^ J.^ 747-
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is -its nature and sources. Second, they are engaged in various forms of restatement of its varied concepts. Back of all the differ- ent kinds of restatement seems to be the assumption that substan- tive law is designed to govern human conduct outside of courts, instead of being a method of classification in the course of the legal process. Their declared intention seems to be a search for pre- dictability. They are creating formulae which are supposed to be equally useful in all of the following situations, which are included in the general term (^) law: (i) for the purpose of classifying past de- cisions in books so that they will be readily available as analogies; (2) for the purpose of guessing the result of a dispute on which no suit has been started; (3) for the purpose of writing a brief in a case where two logically unanswerable briefs are possible; (4) for the purpose of aiding the trial court in making a record in such form that a reversal is difficult; (5) for the purpose of giving analogies and terms to (^) an appellate court which is writing an opinion; and (6) for the purpose of guiding (^) human conduct outside (^) of courts apart from the settlement of any particular dispute. 9 The law of torts, or contracts, or sales, for example, is supposed to give a definite answer in all of these situations. In such situa- tions as it fails to do this, we fall back on the theory that there will always be borderline cases. (^) The object of the various forms of re- statement is to limit the number of borderline cases, and (^) in this attempt it involves (^) itself in infinite complications. A restatement has two avowed purposes; first, to furnish a guide to human con-
19 The perennial dispute as to whether facts and social conditions or doctrine should be the basis of legal study owes its continuance largely to the fact that when we speak of "law" we usually refer to all of these situations at once, without dif- ferentiation between them. We might add still others. For example: (^) We often call "law" those protective devices which lawyers use to safeguard a client from all possible trouble with courts; as, for example, the long forms which attempt to protect (^) a sales contract of an automobile from the hazards of the courts of forty- eight states. No one reads the form until trouble arises and then it becomes the stuff out of which legal arguments are made. We also refer to as "law" the ideals which give prestige and authority to courts. That different approaches are neces- sary in these different situations is indicated by Pound, The Call for a Realist Jurisprudence (193') 44 HARv. L. REv. 697. A somewhat different classification, but with the same idea in mind, is found in Frank, Are Judges Human (931) 80 U. or PA. L, REv. 233, 259.
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duct so that individuals may avoid disputes, and^ second,^ to^ make the result of disputes certain. In doing this,^ restatements^ seem on the surface to be concerned with^ rules.^ Yet^ the^ bulk^ of^ their material ignores the rules^ and^ devotes^ itself^ to principles for^ the application of rules. Statutes receive^ little^ consideration^ unless they are, like the Statute of Frauds, not^ rules,^ but^ the^ storehouse of legal argument and analogy. A^ statute^ which^ is sufficiently definite to be a direction and^ not^ a^ logical^ weapon is ignored. For example, a statute that a corporation must^ start^ with^ three incorporators is^ typical^ of^ the^ thousands^ of^ directions^ which^ are not found among substantive law principles. It is a direction to the secretary of state which anyone can understand. If,^ however, the secretary of state issues a certificate to two incorporators, and the question^ arises^ whether^ in^ a^ particular^ suit^ such^ a^ corpora- tion can collect a^ debt,^ the^ substantive^ law^ appears^ to^ justify,^ and to make inevitable, any result which the court chooses to reach. The actual result of this accomplishment is not predictability of result but predictability of the kind of arguments which will be the intellectual currency in such disputes. Attorneys and courts want to know how they shall^ talk.^ Legal^ scholars^ regulate^ this very important^ field^ of^ procedural^ etiquette^ and^ call^ it^ substantive law. It is difficult to see how it can be a guide to conduct outside of courts, because laymen neither know anything about^ it,^ nor, as Coke pointed out^ to^ the^ King,^ is^ it^ possible^ for^ them^ to^ know anything about it. The paradox is that, if it were sufficiently simple for them to understand, a bureau or policeman could settle the dispute, and we would not need to discuss the concept of^ sub- stantive law. Thus " substantive law," because its formulae and logical proc- esses can never be openly repudiated^ by^ a^ court,^ may^ be^ at^ times a very rigid master of judicial decision.^ Courts^ will^ not^ deny^ the validity of a philosophy which gives^ them^ power.^ Even^ though a doctrine is only a method of argument,^ once^ it^ is^ placed under the protecting mantle of substantive law,^ it^ can^ not^ be^ treated^ in a simple and matter-of-fact way to accomplish a result. The only escape from a principle is a greater principle. Commissions dealing with the same^ problems^ possess^ a^ more^ elastic^ power. Our different attitude toward them permits us to^ offer^ personal
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appeal, the case was heard by a judge without any of the skill in
the particular matters which the commission had acquired by
experience. Nevertheless when his decision was handed down,
criticism ceased. The " law" had spoken, and if the result was
undesirable, it was not the fault of the judge. Later the Supreme
Court found that the entire act was unconstitutional, 2 ' and the
fight was transferred to the legislature. Of course it was just as
impossible to predict the result before a court as it was before a
commission. Yet^ the^ notion^ of^ the^ supremacy^ of^ a^ substantive
law residing in the court, completely removed the question from
the public turmoil of individual criticism.
The science of law peculiar to courts has its utility and effect,
as we have seen, in several ways. (i) It gives the court the at-
mosphere of impersonal and inevitable justice which compels
respect. (2) It shifts criticism of the result away from the judge
or the court to some body which is supposed to have the power to
change the "law." (3) It gives the court a certain attitude
toward the problems which confront it by making relevant ancient
analogies. (4) It expresses general directions and ideals called
principles.
Rules and definite directions, of course, appear wherever we
turn, and whether we are dealing with courts or other bodies.
However, there^ is^ a^ great^ difference^ between^ the^ way^ these^ rules
are applied when we treat them with the attitude induced by the
science of law and when we treat^ them^ with^ the^ attitude^ of^ a
bureau or an administrative official. The difference is illustrated
in a book by a well known English scholar,^2 2 in which, in differ-
ent essays, he writes of "The Ratio Decidendi of a Case," refer-
ring to such things as contracts, consideration, and torts, and of
the English system of taxing costs. The one seems to him to be
part of the science of law, to be considered in the light of general
theory, fundamental in its nature. The taxation of costs, on the
other hand, is treated as a practical problem to which no method-
ology of the discovery of principles scientifically arrived at is
necessary. If we call a summons "process" which is necessary
to give the court " jurisdiction," concepts of all kinds troop in,
from the difference between "mandatory" and "directory" pro-
21 Hodges v. Public Serv. Comm., i59 S. E. 834 (W. Va. 1931). 22 GoODuART, ESSAYS^ IN^ JuRISPRuDENCE^ AND^ TBE^ Co^1 oN^ LAW^ (1931).
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visions, to "presumptions in favor of the judgment of a court of record " and the difference between " direct" and "collateral" attack. If the method of giving notice is not "process," as happens in the case of a motion in the course of the proceedings, then no principles, concepts, or theories appear to trouble us in the books. 3 Illustrations^ might^ be^ multiplied^ indefinitely.^ The point is that it is^ always^ possible^ to^ treat^ any^ rule with^ the^ attitude induced by substantive law and that the moment we do so a philosophy begins to cluster around it and only men peculiarly learned in^ the^ law^ can^ talk^ about^ it^ at^ all.^ This^ is^ what^ Coke^ so carefully explained^ to King^ James.^ The^ King^ was^ under^ the impression that the determination of whether Coke's court or the ecclesiastical commission should deal with a certain case depended on the application of rules which he was quite compe- tent to discuss.^24 But Coke pointed out that there was more than ordinary rules here - there was a science of^ law^ which^ depended on more books than the King had had time to read.^2 " The King might have been able to discuss the advisability of assigning a case to one of two judges, but where the assignment was between a common-law and an ecclesiastical court, it depended on a science of law which was not only above the King but which the King could not even understand. And thus the prestige of an inde- pendent judiciary^ achieved^ one of^ its^ first^ triumphs.
THE EFFECT OF Too MUCH SUBSTANTIVE LAW
The function of substantive law as the embodiment of^ the great ideals of an^ independent^ judiciary^ has^ today^ become^ con- fused by an attempt to apply it in detail to too many cases. Legal scholars have felt it their peculiar duty to clarify the situation and to combat the skeptical attitude toward the decisions of
23 By changing the name (^) of a suit to "motion for judgment" in Virginia, the federal requirement for summons was avoided because the notice was not "tech- nically process." Leas^ &^ McVitty^ v.^ Merriman,^^132 Fed.^ 5io^ (W.^ D.^ Va.^ 1904). 24 We take (^) Gardiner's interpretation of the incident which (^) he states as follows: James was probably inclined to rebel rather against the yoke of the lawyers than against that of the law. What he wanted was to prevent the common law judges from overthrowing the ecclesiastical jurisdiction." 2 GARDINER, HISTORY OF ENG- LAND (1883) 39. 25 Prohibitions del Roy,^^7 Co.^^63 (i6o8).
