The legal process : basic problems in the making and application of law, Volume 2

445 Pages·1958·31.49 MB·English

by  Jr. Henry M. Hart

THE LEGAL PROCESS:
BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW
By
Henry M. Hart, Jr.
P.n d
Albprt M. Sacks
Professors of Law, Harvard University
Cambridge
Tentntive Edition, 1958
Copyright, 1958
by
Henry M. Hart, Jr.
Pnd
Albert M. Scks
366
Chapter III. THE COURTS AS PLACES OF INITIAL
RESORT FOR SOLVING PROBLEMS WHICH FAIL
OF PRIVATE SOLUTION
PREFATORY NOTE
The immediate concern of this chapter is with the role of
the courts in the development of the American common law - the body
of unwritten, self-applying, decisional law which historically has been
the basic instrument of official regulation in the legal systems of
all the American states except Louisiana, and which currently provides
still the underlying framework of order.
The chapter seeks to make clear the vital function which
this kind of unenacted law has performed in the past, now performs,
and can perform in the future. This poses the central question of
the chapter: How should courts conceive of their responsibility to
keep this body of law alive and growing? When can they properly say,
"The decisional law is settled, and any new development or change must
come from the legislature"? When are they obliged to say this? When,
on the other hand, do they abdicate responsibility if they do so?
This kind of issue, it will be observed, always involves two
subordinate issues which are distinct and yet almost inextricably
linked together. The question has to be asked: With respect to this
particular matter, is the legislature as an institution a more appro-
priate agency of settlement than a court? But since a legislature can
ordinarily act only by the method of passing a statute, the question
must also be asked: Is it desirable that the law in this area should
take the form of an enactment rather than of unwritten grounds of decision?
This second question may pose a problem simply of choice
between enacted law and decisional law when both forms of law operate
in the same self-applying fashion. But the statute is not merely an
alternative form of self-applying law. It may introduce new techniques
of control which are beyond the reach of innovation by the decisional
process. The present chapter, as a result, is concerned in the end
as much with the shortcomings of the common law as a form of law as
with its merits. It tries to lay a foundation for an understanding of
the frequent need for some one of the more sophisticated types of
administered regulation or non-regulatory control which have been devel-
oped in the effort to remedy these shortcomings. This foundation will
become important when the uses of these forms of control are brought
under direct examination in the fifth chapter on the legislature and the
sixth chapter on the executive and administrative processes.
In inquiring into the role of the courts in the development
of the unwritten law, the chapter lays a foundation also for later
consideration of their role in placing a decisional gloss upon enact-
ments. 1hese aspects of the judicial function are dealt with in the
seventh chapteravn the interpretation of statutes and in the parts of the
367
eighth chapter having to do with the interpretation and enforcement of
constitutions.
The emphasis of the chapter, which has been indicated, on the
law making, or law declaring, function of the courts is in keeping with
the subtitle of these materials. But this emphasis should not be allowed
to obscure the fact that the development of a body of decisional law is
only a by-produce of the judicial process. The basic function of courts
is the function of adjudication - or, more accurately, the function of
settling disputes by the method of adjudication. Attention accordingly
has to be given to the significance of this method and this function
in the operation of the legal system as a whole.
The problems in the first three sections of this chapter all
involve adjudication by a court, and they all involve entirely conven-
tional types of adjudication. Lhe complaining party has become involved
in a dispute with the defending party growing out of past events. He
comes before a court which has been given a general jurisdiction to
settle disputes of this kind. He asks the court to give him a remedy
against the defendants of a familiar type which the court in an appro-
priate case is empowered to give. In support of his claim for relief,
he relies upon one or more propositions of primary law and one or more
propositions of remedial law, and he proves or offers to prove the
existence of facts which bring these propositions into play. 'he
defendant answers, and submits his counter-proof or offers of counter-
proof. The court then comes to a decision one way or another.
Thought should be given to the various ways in which the
existence of this procedure of settlement contributes, or may contribute,
to the good ordering of society.
It contributes, first, by the very fact of bringing to a
peaceable conclusion the particular disputes which the courts actually
settle. But this is a contribution made also by other procedures of
settlement, and particularly the various procedures of private settle-
ment which were examined in the second section of the last chapter.
Is the courts' contribution any greater, case for case, because of the
enhanced acceptability that flows from the prestige of a judicial
determination? In the run of cases: In great cases?
Secondly, the existence of the courts as a last-ditch place
or resort contributes to the good ordering of society by encouraging
the utilization of less formal or unofficial methods of settlement.
In this connection, thought should again be given to the implications
of the note on The Great Pyramid of Legal Order, at pp. 312-13, above.
Far more disputes are settled because the courts are there to settle
them if the parties don't than the courts are actually called upon to
settle themselves.
Thirdly, and most importantly, the courts serve a function
which is indispensable to the effectual operation of general directive
arrangements at the primary no less than at the remedial stage. Intrinsic
in these arrangements are uncertainties. Intrinsic in them also, therefore,
368
is the need for some agency of authoritative resolution of the uncer-
tainties, if the arrangements are to be made to work at all.
The student should consider whether the courts, in their
conventional operation, may not also make a fourth and distinct con-
tribution to the good ordering of society by holding themselves out
as agencies of correction of law which is unclear or unjust. Here is
a litigant who believes that the law as it affects him is needlessly
uncertain or that a previously announced rule or standard is irrational
or otherwise inconsistent with some more basio principle or policy. He
comes before the court, in Oillard Hurst's illuminating phrase, as a
"one-man lobby," with a formal opportunity to urge a development or
change in the law at the moment and point where it most concerns him.
To what extent does the availability of such a forum of decision pro-
mote the health of a society by helping to convince its members of its
concern for their just treatment? To what extent can this function be
served by a legislature?
Beyond these questions concerning the role of the courts in
the exercise of the conventional function of adjudication lie a host of
closely related questions.
To what extent can courts be effectively utilized as agencies
for the enaotment of law, as in the promulgation of rules of procedure,
or for the clarification of law otherwise than as an incident of the
adjudication of a particular dispute, as in giving advisory opinions?
Does the strength of judge-made law depend upon its association with -
and its emergence out of - the procedure of formal adjudication? If
so, is it essential that the proceeding leading to the decision have all
of the attributes of a conventional law suit at common law or in equity?
Or are some of these, such as the presence of an adversary party,
dispensable? These questions are suggested and some aspects of them are
explored in the fourth section of this chapter.
To what extent does the method of adjudication as employed by
the courts provide a useful model for the settlement of disputes by
other agencies? For the settlement of similar kinds of disputes? For
the settlement of disputes of other kinds, such as a dispute about wages
or working conditions between a labor union and an association of
employers, or a dispute between governments which, if unsettled, may
lead to war. These questions also are touched upon in the fourth
section of this chapter. Kindred questions again are raised in the
sixth chapter on the executive and administrative processes and in the
final chapter on the making and amending of constitutions.
369
Section 1. The Relation Between Law and Fact
NOTE ON THE IDENTIFICATION OF FACT
In a more spacious view of the legal process than these
materials have taken, it would be appropriate at this point to present
a problem dealing with the modes by which courts ascertain the historical
facts of a litigation which pose the legal problems for decision. Such
an examination of judicial methods of fact finding would afford a
basis of comparison with the methods of fact finding used in the various
procedures of private settlement considered in the last section of
Chapter II as well as with the methods used by administrative agencies
which are touched on in Chapter VI.
A practical reason for omitting any such problem is the
difficulty of presenting in any short compass materials which are ade-
quate for an informed and critical appraisal of the judicial process of
fact finding.
A further reason is that an inquiry of this kind has not
seemed to the editors to be strictly relevant to the main theme of the
materials, which concerns basic problems in the development of law.
Are the editors wrong about this? It might be urged that
the law actually applied by courts depends on the actual facts of the
cases they decide and not on the facts as the courts erroneously suppose
them to be. In this view, it might be thought that study of the ways in
which the courts make or declare law should include study of the ways in
which purported law is distorted by mistakes in findings of fact, and of
the ways in which these distortions can be minimized. Compare the
voluminous writings of the late Judge Jerome Frank on the importance of
judicial fact finding. E.g., Fran]; A Plea for Lawyer-Schools, 56 YALE
L.J. 1303 (1947); FRANK, COURTS ON TIXrTl194T).
Is it an adequate answer to this position to say that the two
problems of accurately finding what happened in a case and of justly
determining what should be the legal consequences of the happenings
are separable - so that, vitally important as accurate fact finding is,
it is not an integral part of the process of deciding what judgment
ought to be entered upon a given state of facts?
PROBLEM NO. 10. LAW, FACT, AND DISCRETION
IN THE APPLICATION OF LAW
In Commonwealth v. Wright, reproduced immediately hereafter,
the defendant was charged with setting up and promoting a certain lottery
for money in violation of a statute of the Commonwealth. When the
prosecution and the defense had finished presenting their evidence, it
appeared that there was no material dispute about what the defendant had
done. There remained, however, a lively diagreement about whether the
defendant had set up and promoted a lottery for money,
370
The problems for consideration all relate to the situation
which was presented to the judje in the Wright case at this point in
the trial.
1. Should the judge have regarded the questions whether what the
defendant had concededly done constituted the setting up and promoting of
a lottery for money as -
(a) a question of fact?
(b) a question of law?
(c) a question of mixed fact and law? or
(d) some other kind of question?
2. What instructions should the judge have given the jury?
Suppose he had before him the following three requests for instructions:
(a) A request by defendant's counsel for an instruction that if
the jury believed beyond a reasonable doubt that the defendant had set up
and promoted a lottery for money, they should find him guilty; otherwise,
not guilty;
(b) A request by the prosecuting attorney for an instruction that
if the jury believed beyond a reasonable doubt that the defendant had con-
ducted a game having the following described characteristics (specifically
enumberating all of the characteristics of the game which the defendant
had admittedly conducted) then they should find him guilty; otherwise, not
guilty; and
(c) A request by the proseouting attorney that if instruction
(b) were refused the jury should be instructed as follows: "Gentlemen, any
game in which, first, a prize is or may be awarded to the players; second,
the award of the prize is dependent upon chance; and, third, the players
furnish a consideration in return for a chance at a prize, is a lottery
within the meaning of the laws of this Commonwealth. If you believe beyond
a reasonable doubt from the evidence that the defendant conducted a game
having these three elements, then it is your duty to find him guilty; other..
wise, not guilty." Cf. State v. Jones. 44 N.M. 623 (1940)
Which of the three requests, if any, should the judge have granted?
3. Are the questions in 1 and 2, above, simply two different ways
of asking the same thing?
COMMONWEALTH v. WRIGHT
Supreme Judicial Court of Massachusetts, 1884. 137 Mass. 250
HOLMES, J. The defendant has been convicted of setting up and
promoting a certain lottery for money; and the only question raised by his
exceptions is whether the jury were warranted in finding that a game popularly
known as the policy or envelope game is a lottery, within the Pub. Sta. c.
209, 01.
371
There was evidence that the defendant carried on the game, and that
the public were invited to attend and take part in it. The substance of the
game, as described in the bill of exceptions, seems to be that any one wishing
to play chooses a number and pays a certain sun for it; and that then the
conductor of the game draws an envelope from a box full of them, which
envelope contains a slip with many numbers upon it. If the number chosen is
found among those upon the slip, the person who chose it receives a multiple
of the sum paid by him, greater or less according to the odds agreed upon.
If not, he loses what he has paid.
1e assume that the numbers upon the slips are limited in some way,
so that the chances or success may be exactly calculated. But the defendant's
argument that therefore the game contained no element of chance may be dis-
missed with a word. The event is none the less uncertain, that the chances
of the event are certain. The chances only represent the average of a long
series of events.
The event does not appear to have been even mechanically certain,
as the selecting the envelope seems to have been made arbitrarily, after
payment. But if the choice of the number had also fixed the envelope, so
long as the event could not be predicted by the party concerned, it would be
uncertain, and depend on chance in the only sense which the law has to take
into account. Commonwealth v. Thacher, 97 Mass. 583. State v. Clarke, 33
N.H. 329, 335.
Perhaps it is a little more difficult to show how the game is more
than a wager. A bet, however, is usually executory on both sides, isolated,
and determined by events independent of any action of the parties, while in
this game a price is paid for the chance of a prize, and it is determined by
a mechanical device worked by the manager of the game according to a scheme
held out to the public, whether he who pays the money is to have the prize or
nothing. " It may be that the difference between this and a single wager on the
cast of a die is only one of degree; but, if so, the difference is sufficiently
marked to warrant the finding of the jury. We cannot say, as matter of law,
that the facts that the prize was money and not specific, and that more
than one could elect the same number with the same result, prevented the
game from sing a lottery. It is a lottery according to the popular use of
the word as shown by the dictionaries, according to history, to which lotteries
with money prizes not specific have long been known and according to the course
of the decisions. Kilkinson v. Gill 74 N.Y. 63. See State v. Lovell, 10,
Vroom 458; and cases cited in Bish. Stat. Crimes, 5952.-
Exceptions overruled.
COMMONWEALTH v. SULLIVAN
Supreme Judicial Court of Massachusetts, 1888. 146 Mass. 142.
INDICTNEM alleging the defendant "did set up and promote a certain
lottery, the name and a more particular description of which said lottery being
to said jurors unknown, which said lottery was then and there for money, said
lottery not being then and there authorized by law in said Commonwealth."
Trial in the Superior Court, before Bacon J., who allowed a bill of
exceptions, which, so far as material, was as follows:
372
Franklin H. Walker, the only witness called by the government, testi-
fied that he knew the defendant: that on April 1, 1886, he went to a small
room in building No. 1156 Washington Street, Boston, in which was a long
counter, and behind it were some men writing; that thirty minutes after he
got there the defendant came in, took off his coat and hat, and said to
one Graham, who was one of the writers, "I am ready to go to work"; that he
asked the defendant if he was a writer there, and the defendant said he was,
and on being futther arked if he was the proprietor, replied that he was
only hired there, and did it for money; that he asked the defendant to whom
he should look for his money if he won any, and the defendant said he would
settle all as soon as the drawings were made; that he gave the defendant four
numbers from a column of 78; that if he had given the defendant three num-
bers it would have been a "gig; that he paid ten cents to the defendant;
that he saw several other persons give the defendant numbers and give and
take money; that the defendant gave him a ticket or piece of paper with 479
on it; and on being asked, "What does 479 stand for?" replied, "The number
for the drawing; each drawing is numbered a class number. 1he drawings are
put in envelopes."
Walker further testified, that he stayed there ten or fifteen minutes,
and saw others receive from the defendant similar papers with numbers, and
give money to himl that the defendant stood up and asked if there were any
other parties that wanted to take part in the game; that the defendant took
an envelope from the wall, and taking therefrom a slip of paper with twelve
numbers on a black-board, and also the class number; that then a man made a
claim of five dollars, and the defendant continued to write again, and he
remained and saw another drawing made in the same way,: that the numbers that
the persons wanted to give the defendant, or call out, the defendant would
write on slips of paper in place of the money he took from them; and that
then, when the audience oneed to take part, another drawing wa-made, that
is, the defendant took another envelope and took out a drawing just as he did
in the other case.
Walker was then asked to "describe this game in full, -- in detail";
but this question was excluded by the judge, and he proceeded to testify
that his four numbers were 4, 17, 11, 44, and were not in the claim; that
he was not entitled to any claim because those numbers did not appear in
the claim, and that he did not draw any money. 'he latter portion of this
testimony was objected to. * * *
The Jury returned a verdict of guilty; and the defendant alleged
exceptions.
HOLMESJ. 1. This is an indictment under the Pub..Sts. c. 209,
81, for setting up and promoting a lottery. The indictment follows the
words of the statute, and is well enough.
2. The testimony desor*,ed a game substantially similar to that
described in Commonwealth v. Wright, 137 Mass. 250, which the jury found to
be a lottery. The defendant asked the court to rule that there was no suf-
ficient evidence to warrant a conviction. The court refused so to rule,
but ruled that, if the evidence was believed, "it was a lottery, and a set-
ting up and promoting a lottery," and that the jury would be warranted in
finding the defendant guilty. If the statement that "it was a lottery," &c..
was anything more than a preliminary explanation of why the court refused
373
the defendant's request, the substance of the ruling made being that there
was evidence for the jury, we cannot say that it went too far.
The testimony was not very clear, it is true, and further description
seems to have been excluded on the defendanth objection. But if the
evidence meant anything, it described a game in which a price was paid for a
chance of a prize, and in which it purported to be determined by chance; that
is, by means making the result independent of the will of the manager of the
game, according to a scheme held out to the public, whether he who paid the
money should have the prize or nothing. Lhis having been determined to be
a lottery in Commonwealth v. Wright, it is not necessary to go on forever
taking the opinion of the jury in each new case that comes up. Whether or
not a definitely described game falls within the prohibition of the statute,
is a question of law. The defendant was bound to know at his peril. What-
ever practical uncertainty courts may have felt upon a subject with which
they are less well acquainted that some others of the community, in theory
of law there is no uncertainty, and the sooner the question is relieved from
doubt the better. * * *
Exceptions overruled
BACKGROUND NOTES ON THE DISTINCTION BETEEN
LAW AND FACT
A. The Utili of Nfforts to Distinguish
" "anFact"
Suppose the judge, faced with the requests for instructions set
forth in paragraph 2 of the problem, gives instruction (a) as requested by
defendant's counsel.
It is commonly said that "questions of law" are for the judge and
"questions of fact" for the jury. Other important empowering arrangements
are often formulated also in terms of the distinction between law and fact.
Not only the division of functions as between judge and jury but the division
as between trial court and reviewing court and as between administrative
agency and reviewing court is said to turn, at least in part, on this distinction.
If this usage is accepted, it would seem to follow that the judge in
giving instruction (a) has decided that the question whether defendant's
game constituted a lottery is a question of fact.
However, the perceptive critic may well ask whether the judge assigned
the question to the jury because, properly analyzed, it is one of fact, or
whether it is called one of fact because he assigned it to the jury. Was the
motivating consideration for the assignment a conclusion really derived by
analysis of the nature of the question, or a judgment based on independent
grounds about what the allocation of function ought to be?
Some critics have concluded that "law" cannot be distinguished analy-
tically from "fact" and that at best there terms are nothing more than labels
to describe a conclusion about division of function. This being so, they
have urged, the labels should be discarded and the essential issues for