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L'o
Jerome Frank

-it,!XH

i!tSUSH JNC7

Law and the Modern Mind


CHAPTEll IV

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JUDICIAL LAW-MAKING
HAVE judges the right and power to make law and change law?
Much good ink has been spilled in arguing that question. A brief
survey of the controversy will illuminate our thesis.
The conventional view may he summarized thus:
Law is a complete body of rules existing from time immemorial
and unchangeable except to the limited extent that legislatures have
changed the rules by enacted statutes. Legislatures arc expressly empowered thus to change the law. But the judges are not to make or
change the law but to apply it. The law, ready-made, pre-exists the
judicial decisions.
Judges are simply " living oracles " of law. They arc merely
"the speaking law." Their function is purely passive. They arc " but
the mouth which pronounces the law." They no more make or
invent new law than Columbus made or invent~d America.*
] udicial opinions arc evidence of what the law is; the best evidence,
but no more than that. When a former decision is overruled, we
must not say that the rule announced in the earlier decisio_n, was once
the law and has now been changed by the later decision. }Ve must
view the earlier decision as laying down an erroneous rule. It was a
false map of the law just as a pre-Columbian map of the world was
false. Emphatically, we must not refer to the new decision as making
new law. It only seems to do so. It is merely a bit of revised legal
cartography.
If a judge actually attempted to contrive a new rule, he would be
guilty of usurpation of power, for the legislature alone has the
authority to change the law. The judges, writes Blackstone, are " not
delegated to pronounce a new law, but to maintain and expound the
old !aw "; even when a former decision is abandoned because " most
" Men do not make la.ws," writes Calvin Coolidge. "They do but discover them . That sta.te is most fortunate in its form of government which
ha.a the apteat instrumeou for the discovery of lawa."

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JUDICIAL LAW-MAKING
:mdently contrary to reason," the "subsequent judges do not pre:~d to make new law, but to vindicate the old one from misrepre~-=tation." The prior judge's eyesight had been defective and he
fmade "a mistake" in finding the law, which mistake is now being
:rectified by his successors.
Such is the conventional notion. There is a contrary minority view,
which any dispassionate observer must accept as obviously the co~rect

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"No intelligent lawyer woult!. in this day pretend that the decisions of the courtS do not add to and alter the law," * says Pollock,
a dimnguished English jurist. "Judge-made law is real law," writes
Dicey, another famous legal commentator, "though made under
the form of, and often described by judges no less than jurists, as the
'mere interpretation of law The amount of such judge-made
law is in England far more extensive than a student realizes. Ninetenths, at least, of the law of contract, and the whole, or nearly the
whole, of the law of torts are not to be discovered in any volume of
the statutes. , . Whole branches, not of ancient but of very modern law, have been built up, developed or created by action of the
courts., 1
Judges, t};:;n, do make and change law. The minority view is
patently correct; the opposing arguments wffi not bear analysis.
What, then, explains the belief so tenaciously held that the judiciary
. does not ever change the law or that, when it does, it is acting im-
properly? Why is it that judges adhere to what Morris Cohen has '
.happily called " the phonographic theory of the judicial function " ?
{:'What explains the recent remark of an eminent member of the Bar:
-""The man who claims that under our system courts make law is
asaerting that the courts habitually act unconstitutionally " ? Why
do the courtS customan1y deny that they have any law-making power
and descn'be new law which they create to deal with essentially con: temporary events, as mere explanations or interpretations of law
. wltich already exists and has existed from time immemorial? Why
.this obstinate denial of the juristic realities?
Pollock is clearly in error: molt lawyen deny the reality of jud~:e-made
" law.

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LAW AND THE MODERN MIND


We revert to our thesis: The essence of the basic legal myth or
illusion is that law can be entirely predictable. Back of this illusion is
the childish desire to have a fixed father-controlled universe, free
of chance and error due to human fallibility.
In early stages of legal development this desire was more intense
than how and there was what Sir Henry Maine has called " a super.stitious disrelish of change " which went to the extent of making men
oppose any modification of existing law even by statutory legislation.
We have partially overcome the superstitious antipathy to legal change
so far as the change .results from the action of legislative bodies, and
no little part of law is modified each year by statutes enacted by state
legislatures and by Congress.
But such statutory legislation, while it may alter the law, does so,
ordinarily, only prospectively. It is the usual practice - to some extent it is required by constitutional prohibitions- that changes embodied in statutes enacted by legislative bodies should not be retroactive
but should apply only to future conduct. Which is to say that, generally speaking, a legal novelty brought about through statutory
legislation can be known before men do any acts which may be
affected by the innovation. Insofar, a man can conduct himself in
reliance upon the existing law, knowing, at the time he acts, that any
changes thereafter made by a legislative body will not modify the law
upon which he relied.
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Consequently, absolute certainty and predictability are 'apparently
not endangered by alterations of law made or adopted by legislatures.
But if it is once recognized that a judge, in the course of deciding
a case, can for the first time create the law applicable to that case, or
can alter the rules which were supposed to exist before the case was
decided, then it will also have to be recognized that the rights and
obligations of the parties to that case may be decided retroactively. A
chane;e thus made by a judge, when passing upon a case, is a change
in the law made with respect to past events,- events which occurred
before the law came into existence. Legal predictability is plainly impossible, if, at the time I do an act, I do so with reference to law

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JUDICIAL LAW--MAKING

which, should a lawsuit thereafter arise with reference to my act,


~~ be changed by the judge who tries the case. For then the result
.it that my case is decided according to law which was not in existence
, when I acted and which I, therefore, could not have known, predicted
or relied on when I acted.
If, therefore, one has a powerful need to believe in the possibility
of anything like exact legal predictability, he will find judicial lawmaking intolerable and seek to deny its existence.
Hence ..the myth that the judges have no power to change existing
law or make new law: it is a direct outgrowth of a subjective need
for believing in a stable, approximately unalterable legal world- in
tHect, a child's world.
This remark might be challenged on the ground that the desire
: to avoid legal retroactivity is not " subjective " but practical, because,
it may be said, men cannot and will not engage in affairs without
.. having in mind the pertinent law. Yet reflection reveals the fact that
the supposed practical importance of avoiding legal retroactivity and
uncertainty is much overrated, since most men act without regard
to the legal consequt. . es of their conduct, and, therefore, do not act
in reliance upon any given pre-existing law:
"Practically," says John Chipman Gray, "in its application to
actual affairs, for most of the laity, the law, except for a few cr~:~4e
notions of the equity involved in some of its general principles, is all
e:t post facto. When a man marries, or enters into a partnership, or
buys a piece of land, or engages in any other transactions, he has
the vaguest possible idea of the law governing the situation, and with
our complicated system of Jurisprudence, it is impossible it should
be otherwise. If he delayed to make a contract or do an act until
he .understood exactly all the legal consequences it involved, the contract would never be made or the act done. Now the low of which
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11 man has no knowledge is the same to him as if it did not e:tist.' a
Which is to say that the factor of uncertainty in law has little
bearing on practical affairs. Many men go on about their business
with virtually no knowledge of, or attention paid to, the so-called
legal rules, be those rules certain or uncertain! If the law but

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slightly affects what a man does, it is seldom that he can honestly
maintain that he was disadvantaged by lack of legal stability. Although, then, judges have made law, vast quantities of law, and
judge-made innovations, retroactively applied, are devised yearly;
although frequently a man must act with no certainty as to what
legal consequences the courts will later attach to his acts; although
complete legal predictability and with it safety from slippery change
are therefore by no means possible,- yet retroactivity and the resulting unavoidable uncertainty are not as great practical evils as they
are often assumed to be. The no judge-made law doctrine, it seems,
is not, fundamentally, a response to practical needs. 1 It appears
rather to be due to a hunger and a craving for a non-existent and
unattainable legal finality- which, in turn, may be ascribed to a
concealed but potent striving to recapture in the law the child's
conception of the fatherly attributes.
But what of it? What harm in this myth? No harm, if the denial
of judicial law-making were a mere pleasantry, in the category of
what Austin and Morris Cohen refer to as polite or euphemistic
fictions; that is, statements contrary to fact, but known by all to be
such and comparable to the fibs of daily social intercourse.
But the denial of the fact of judge-made law is no mere .fib. At
times, indeed, it seems to resemble an outright benevolent lie, a
professional falsehood designed actually to deceive th~ laity for their
own good; Gray suggests that the misrepresentation derives in part
from a belief of the legal profession that it is " important that judges
should say, and that the people should believe, that the rules according
to which the judges decide these cases had a previous existence." The
lay public, that is, arc to be duped.
Now this dupery is not harmless. It leads, sooner or later, to a
distrust of the judges, a disrespect for their opinions. For now and
again the public becomes aware that in some actual cases the judges
have made or changed the law. Then follow accusations of dishonesty, of corruption, of usurpation of authority, of revolutionary
violation of the judicial oath of office, and the like. And it is difficult
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JUDICIAL LAW-MAKING
to reply to such accusations when the judges themselves deny that
they have power to make law and yet go on (unavoidably and un.lllist2kably) making it.
Why, then, do the judges deceive the public? Because they are
themselves deceived. The doctrine of no judge-made law is not,
generally speaking, a "lie"- for a lie is an affirmation of a fact
contrary to the truth, made with knowledge of its falsity and with the
intention of deceiving others. Nor is it a " fiction"'- a false affirmation made with knowledge of its falsity but with no intention of
deceiving others.
It is rather a myth- a false affirmation made without complete
knowledge of its falsity! W c arc confronting a kind of deception
- which involves self-deception. The self-deception, of course, varies
-in degree; many judges and lawyers are half-aware that the denial
- of the existence of judicial legislation is what Gray has called " a form
of words to hide the truth." 11 And yet most of the profession insists
thir.t the judiciary cannot properly change the law, and more or less
believes that myth. When judges and lawyers announce that judges
an never validly make law, they are not engaged in fooling the
public; they have successfully fooled themselves.

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And this self-delusion has led to many unfortunate results. With


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their thinking processes hampered by this myth, the judges haye been
forced, as we have seen, to contrive circumlocutions in order to con.cui from themselves and the laity the fact that the judiciary frequently changes the old legal rules. Those evasive phrases are then
dealt with as if they were honest phrases, with consequent confusion
and befuddlement of thought. Legal fictions are mistaken for objective legal truths and clear legal thinking becomes an unnece~rily
arduous task.
This is not the place to discuss at length the immense importance ~~
: nlid fictions." Suffice it to say that valid fictions, whether in mathematics, physics, medicine or law, arc invaluable. But the correct
and effective use of a fiction involves a constant recognition of its

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character. It is often desirable to treat A "as if" it were B. Mathematics, for instance, finds it useful to employ the fiction that a circle is a
polygon; i.e., to be dealt with, for certain purposes, as if it were a
polygon. Medical thinking is aided by the fiction of the completely
healthy man. So in law, it is helpful at times to treat a corporation
as if,. for certain purposes, it were a real citizen, distinct and apart
from its flesh-and-blood stockholders, directors, officers, and
'agents. 15
But there are a vast number of so-called fictions which are really
bastard fictions or semi-myths, where the " as if " or "let's pretend"
factor has, in some measure, been submerged. It is said, not that A
is to be treated for certain purposes " as if " it were B, but instead it
is said and believed, incorrectly, that A is B. While thinking is often
advanced by a valid fiction, it is hindered when a fiction becomes a
myth or semi-myth; i.e., when the artificial character of the fiction,
its lack of literalness, its basically metaphorical significance, are in
whole or in part overlooked.*
The law has suffered much from such bastard fictions or semi-myths.
Thus we have such things as "contracts implied in law." Now the
essence of a contract is that the parties to the contract consent to be
bound. But the essence of a so-called " contract implied in law" is
that there is no consent. To use the word " contract " in the latter
case without constant awareness of the fact that 'one is speaking
metaphorically is to blur and obfuscate. What is actu:ai!y meant by
the phrase is that under certain circumstances the courts will compel
parties who have not made a contract to act " as if " they had made
a contract. The courts have often been led astray through a failure to
keep in mind the " as if " in that verbal construct.
In like manner, we have unfortunate consequences flowing from
the careless use of such phrases as " constructive fraud," where all
There can be no objection, in the interest of saving time, to the temporary
verbal omission of the "aa if" when u!ing a fiction, provicled the "aa if " u
not ignored. But auch !horthand expression! are dangerou! to clear thinking
unless the fact that they are abbreviation! i! kept clearly in mind. See Part I,
Chpter XV and Appendix VII.

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JUDICIAL LAW-MAKING
_fraud is absent, and " malice in law " where there is no malice what'.
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;fBecause of these semi-myths and a host of like verbalisms- often


,~operly referred to as legal " fictions " although they are empoyed without complete awareness of their artificiality- many
legal critics have denounced all legal fictions as unmitigatedly evil.
Bentham thought a legal fiction " the most pernicious and basest sort
of lying":
"It affords," he wrote, " presumptive and conclusive evidence
:of moral turpitude in those by whom it was invented and first em:ployed without complete awareness of their artificiality- many
_occasionally is translated into the language of truth. Burn the origi.nal and employ the translation in its stead. Fiction is no more
:neosmy to justice, than is poison to sustenance. . Fictions are
'falsehoods, and the judge who invents a fiction ought to be sent to
]aiL ' Swearing,' says one of the characters in a French drama,
! constitutes the ground-work of English conversation.' Lying, he
imight have said, without any such hyperbole -lying and non[sense compose the ground-work of English Judicature . In Eng;lish law, fiction is a syphilis which runs in every vein, and carries
~!eta every part of the system the principle of rottenness."
. ~- And more recently, Professor Jeremiah Smith has joined in this
\condemnation:

t-~_!- "The use of fiction," he asserts, " tends not only to impair', in a

general way, reverence for truth; but also to diminish the respect
otherwise be felt for the courts and for the law itself.
i.Jiese objections, in substance, have been urged, not by mere theor_{as; but by experienced lawyers and judges. We believe that, at
the present day, the use of fiction in law should be entirely abandoned.
;~~ . If a fiction does not, in any degree or to any extent, represent
&.legal truth, then its continued use can result only in evil. If, on
:the other hand, it represents- in part at least- some clumsily
'Concealed legal truth, then it is capable of being translated into the
1ang~Uge of truth, and we should adopt Mr. Bentham's remedy...;._
~Bum the original, and employ the translation in its stead.' In short,
we would entirely discard the use of fiction phrases and fiction rea-

Jirhich would

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These are strong words. They arc too sweeping. Neither in law
nor elsewhere could we afford to do away with fictional contrivances.
One might almost say that the capacity for sustained valid "as if"
thinking is the mark of the civilized man." "Juridical theory," says
Tourtoulon pithily, " is all the more objective when it presents itself
as fictitious, and all the more delusive when it claims to do without
fictions." To the extent that fictions are recognized as such, that their
"as if" or "let's pretend" element is kept clear, that the omission
. of qualifications from such abbreviated or metaphorical statements is
not taken to mean the permanent irrelevance of such qualificationsjust to that extent fictional representations should be encouraged as
invaluable thought-tools. Objection properly arises only when the
partial, metaphorical, artificial character of the fiction is overlooked
-when, that is, the fiction becomes a myth or semi-myth.*
' Such misuse of the legal fiction has produced that fiction-phobia
among lawyers manifested in the condemnatory expressions of Bentham and Smith. Justified in their assaults on bastard fictions, they have,
unfortunately, gone too far and have assailed valid fictions as well.'"
Valid fictions are defensible -more, they are indispensable. But
what is significant for our purposes is the defense of the bastard
fictions, the semi-myths. To Blackstone, they were amen~ the cherished beauties of the law. To Mitchell/' it seems that the common
law is largely indebted to these verbal mechanisms for its rapid
development and its ability to follow closely social .needs. Why this
praise? Because, says Mitchell, these devices make "less noticeable,
both to the world and to the judges themselves (and therefore more
easy) the legislation that is being accomplished by the judges." 11
Such judicial legislation he considers essential to the life of the law.
But no less essential, he contends, is the necessity of concealing what
is going on. Wherefore to him these misleading, inaccurate and
trouble-making phrases are well worth the price of " the discredit
which their apparent falsity brings upon the law."
Unfortunately many writers (some of them quoted in this book)
the word " fiction " in the sense of " myth " or " semi-myth."

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Stated thus baldly, how childish is such a defense: ] udges must_


; continue to create law, but they and the public must be kept unaware
their accomplishment. Untruths must continue to be told to the
about the essential function of law, and law must continue to
~be made by men befuddled by myths and only partially aware of
!'what they are doing. And why? Because, apparently, many fullgrown men, whether they be laymen or lawyers, cannot bear to
l=rn the truth, and must be kept in a world of make-believe where
they can continue to cherish the illusion that the law of an adult
: civilization is, in spirit, of a kind with the authoritative rules laid down
for children by their father.

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The genealogy of legal myth-making may be traced as follows:


Childish dread of uncertainty and unwillingness to face legal realities
produce. a basic legal myth that law is completely settled and defined
Thence springs the subsidiary myth that judges never make law. That
myth, in turn, is the progenitor of a large brood of troublesome semi~- myths. One is reminded of Morley's comments with respect to a like
development in Church history:
" Subordinate error was made necessary and invented, by reason
of some pre-existent main stock of error, and to save the practice of
the Church. Thus we are often referred to the consolation which
this or that doctrine has brought to the human spirit. But what if the
same system had produced the terror which made absence of co~
solation intolerable? How much of the necessity for expressing the:
enlarged humanity of the Church, in the doctrine of Purgatory,
arose from the experience of the older, unsoftened doctrine of eternal
hell? 11

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