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1-1-1932

The Role of Substantive Law and Procedure in the

Legal Process
Thurman W. Arnold
Yale Law School

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Arnold, Thurman W., "The Role of Substantive Law and Procedure in the Legal Process" (1932). Faculty Scholarship Series. Paper 4258.
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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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 SUBSTANTIVE LAW AND PROCEDURE

toward preserving and insuring the efficient operation of an in-

dependent judiciary as we know it today. That there are other
fields in which legal scholarship is needed is unquestioned. But
the particular task of restating substantive law, whether in text
books, articles, or by the American Law Institute is certainly
directed toward that end. If that kind of study is to be effective
in guiding an existing institution which claims to be applying
precepts, standards, and principles of substantive law, it becomes
necessary to understand just what part this conception of sub-
stantive law plays in the operation of that institution. The prob-
lem is not philosophical, but entirely practical.

THE FUNCTION OF THE CONCEPT OF SUBSTANTIVE LAW

To look at the concept of a science of substantive law as a

practical factor in the operation of courts, requires a shift of
emphasis from the study of legal doctrine to a study of the opera-
tion of an institution - which is a difficult shift for a lawyer to
make. He has been trained to assume that substantive law
governs society, and that courts were only set up as incidents to
its enforcement. We may illustrate this by an analogy. If one
attempted to study the Mormon colonization of the West by
centering attention on the rules, standards, and principles found
in the Book of Mormon, on the assumption that Brigham Young
was its humble instrument, the resulting picture would be some-
what distorted. Certainly the creed had a profound effect on the
movement. Without it, or some other philosophy, we would have
had simply a group of persons engaged in agriculture or trade.
But the effect of the Book of Mormon could hardly be estimated
by logical deduction from its principles. An objective examina-
tion would be necessary for either information or reform. Yet
it would have been difficult for a devout Mormon of that day to
make that examination. In the same way it is not easy for the
legal scholar to make the court the center of his study and to
consider the doctrines of substantive law only as factors in pre-
serving its power and independence, in determining its attitude,
and in furnishing it with a method of expression.
In spite of its difficulty, this shift of emphasis from doctrines
to courts needs to be made if we are either to understand, reform,

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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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 SUBSTANTIVE LAW AND PROCEDURE

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

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what they are doing or even what they are aiming to do. Such
efforts, generally confined to public meetings, result in speeches
like the following, reported from an annual meeting of the
American Bar Association:
"America looks to the bar today for leadership, as she has always
looked. It was the lawyers who led us in our struggles for independ-
ence. . . . And it has been the lawyers who, not only upon the bench,
but at the bar, in the legislature and in executive positions, have
moulded our institutions to meet the changing life of our people. The
charge that they have allowed the law to become antiquated and obso-
lete cannot be sustained. While changes are needed in procedural law,
these changes are already in process of realization and much has already
been accomplished. Great problems confront the nation, but the bar
of America will rise to meet them, as it has always risen in the past." I

It seems, at first sight, extraordinary that any body of busy men

should take so much responsibility on their shoulders. Yet that
they are constantly doing it is attested by the fact that speeches
of this tenor and effect made during the last century would fill
hundreds of volumes and that no meeting of any bar association
ever occurs without at least one being made. The net results on
institutions other than courts of this assumption of general re-
sponsibility are somewhat doubtful, but the fact that the bar
sincerely feels it is very significant in its effect on the judicial
system, from articles on jurisprudence in law reviews down to
learned discussions in " jurisdictional" terms on the omission of
the details in the service of summons.
As we study these speeches we are impressed with the thought
that we have read something like them before. It occurs to us
that they sound strangely like the confident exhortations of min-
isters of the gospel fifty or one hundred years ago, when the
church was too confident and sure of its purpose to examine that
purpose to see whether it was capable of reduction to intelligible
terms. It is not the preaching of the modernist, full of doubts and
s Parker, Social Progressand the Law (193o) 16 A. B. A. J. 7oi, 707.
9 Without the mystical concept of a " court" which induces such speeches it
would be impossible to build up a reverential attitude toward such a thing as the
"jurisdictional nature" of process, which still exists in defiance of common sense,
and which is independent of any particular statute governing process. For ex-
ample, see BowzEs, CivIL PROCESS AND ITS SERVICE (1927) Preface.

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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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 SUBSTANTIVE LAW AND PROCEDURE

it leads to absurd results because of their solemn obligation not

to do anything in the future very much different from what
they have done in the past. But bureaus in allowing themselves
to be bound by red tape do so out of pure malice and lack of
regard for the fundamentals of freedom, because they have taken
no oath not to violate the rules and analogies of the past. There-
fore they are much worse than courts because courts only act
unreasonably when they can't help it, and bureaus act unreason-
ably when it is in their power to do differently. This is brought
out very clearly in a recent editorial, Bernt Balchen Discovers
Bureaucracy:
"According to a ruling of the department of labor Bernt Balchen,
Admiral Byrd's pilot in the flight over the south pole, cannot receive
his citizenship papers. Balchen, a native of Norway, declared his inten-
tion in 1927. It is held that he has failed to meet the condition of five
years' continuous residence in the United States. The Byrd antarctic
voyage took him out of the country, although he was on a ship flying
the American flag, was an invaluable member of an American expedition,
and in a region to which there is an American claim because of the
exploration and occupation of it by Americans, this region being Little
America.
"The bureau of naturalization explains that it cannot proceed on the
assumption that Little America is American soil. That would be tres-
pass on international questions where it has no sanction. So far as
the bureau is concerned, Balchen was out of the country and technically
has not complied with the law of naturalization. The upshot is that,
unless a way of modifying this opinion is found, a man whom the coun-
try would like to have as a citizen cannot soon become one simply be-
cause he took an invaluable part in an enterprise of which the country
is proud." 12

This editor had a definite notion of the superiority of judges

sitting as courts over judges sitting as bureaus. While, of course,
instances can be found where courts have acted just as out-
rageously, a close examination of such decisions always shows,
nevertheless, either that they were forced into such action by a
greater principle, such as the one against judicial legislation, or
against hard cases being allowed to make bad law, or else that
they were wrong according to the principles of the common
12 Chicago Tribune, June 24, 1931, at io.

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 HARVARD LAW REVIEW

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

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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

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for non-payment of debt. 3 The imprisonment was the fault of the

law and not the court. It is true that the Parliament in 1869 had
abolished imprisonment for debt, but this did not include judg-
ments which the debtor had the means to pay yet wilfully refused
to pay. The difficulty that it was entirely too easy for the creditor
to establish the fact that the debtor had the means to pay, is only a
procedural fault for which no court can be held to account. 4 It
must simply do the best it can with procedure as it finds it. There-
fore the Rt. Hon. Lord Hewart of Bury, Lord Chief Justice of
England was quite right in ignoring such details as this when he
wrote his book on The New Despotism in which he pointed out the
dangers from the arbitrary actions of men who judge cases sitting
as bureaus instead of as courts, and who thus are creating a new
form of despotism in England.
"The paradox which is in course of being accomplished is, indeed,
rather elaborate. Writers on the Constitution have for a long time
taught that its two leading features are the Sovereignty of Parliament
and the Rule of Law. To tamper with either of them was, it might be
thought, a sufficiently serious undertaking. But how far more attrac-
tive to the ingenious and adventurous mind to employ the one to defeat
the other, and to establish a despotism on the ruins of both! . . . The
old despotism, which was defeated, offered Parliament a challenge. The
new despotism, which is not yet defeated, gives Parliament an anaes-
thetic. The strategy is different, but the goal is the same. It is to sub-
ordinate Parliament, to evade the Courts, and to render the will, or the
caprice, of the Executive, unfettered and supreme. The old King, as
Rudyard Kipling sings in 'The Old Issue,' sometimes reappears under
a new name." 15

It appears from this that bureaus, even though given absolute

power to enforce the decrees of other persons in the government,
do not use that judgment in enforcing them which is so character-
13 CRanirAL STATISTICS, ENGLAND AND WALES 1927. This figure does not in-
clude imprisonment for non-support or bastardy cases. Including these cases the
total is 12,132. See Imprisonment for Debt (1923) 68 SOL. J. 178, (1928) 72 id. 676.
14 For a description of the procedural method by which imprisonment is ac-
complished, see PARRY, TmE GosPE. AND THE LAW (1928) C. V. In 1918 during the
war only 2o6 persons were imprisoned on the judgment summons process. It is
significant to point out that the author of this spirited attack on the process blames
the "law," rather than the courts.
'5 HEWART, THE NEw DEsPoTism (1929) 17.

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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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"The system of so-called administrative 'law' in this country- has

little or no analogy to the ' droit administratif ' of the Continent, and
is an indescribably more objectionable method. . . . In a word, the
'administrative tribunals' of the Continent are real Courts, and what
they administer is law, though a different law from the ordinary law." 17

The second feature of the supremacy of law, which is to make

results of disputes more logical and predictable by the application
of principles or the development of principles, is ordinarily re-
ferred to as the common law. It is a science of reconciling prin-
ciples and precedents in an orderly way so that one will grow out
of the other. Thus nothing absolutely new should come from a
court without the aid of the legislature, and such new principles
as appear should be the logical development of older ones applied
to new cases. It appears, however, that very many new problems
can be solved so much better without the aid of this science that
administrative tribunals are formed just to escape it, and the area
to which this science is applicable is being made smaller and
smaller. This happened once before when courts of equity began
to grow up against the substantive law of the time. Now that
equity has become part of the substantive law, a new court seems
to be necessary. However, such general theories of the function
of substantive law, as well as its more comprehensive systems of
methodology seem to be the peculiar province, not of courts and
lawyers, but of a third body of persons whom we have designated
as legal scholars. It is interesting to note that no other human
institution except the church, has any comparable body of learned
expounders.
The Legal Scholars and Substantive Law. Legal scholars, inso-
far as they are concerned with the concept of substantive law, ap-
pear to be doing two things." First, they are explaining what law

17 See H-wART, T E NEw DEsponism (1929) 45.

Is The statements which follow, of course, do not attempt to be accurate but
rather to set out a popular notion which still affects much legal scholarship, par-
ticularly that portion of it devoted to clarifying doctrine by logical analysis. An
accurate general statement of what legal scholars are doing is, of course, impossible
because they are doing so many things. It is, however, the writer's belief that the
statements which follow are fairly descriptive of an attitude which is often in-
stinctively taken. Subjects like torts or contracts are usually so separated intel-
lectually from jurisprudence in textbook thought that an instinctive conventional
approach is adopted in the former which may be denied in the latter subject.

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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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criticism if they blindly adhere to any verbalism. Hence we can

force them to talk about the particular problem involved."
From this discussion we may attempt to define that concept
of substantive law which is peculiar to courts, and the part it plays
in the work of legal scholars.
Substantive law, insofar as it is peculiar to courts, is the jus-
tification of the attitude that courts are acting impersonally and
that their government is one of laws and not of men. It is not
an institution which governs society, yet its function requires it
always to appear to be. Without an independent judiciary we
would have no occasion to use it among our ideals. Something
else, such as the Divine Right of Kings, or the Five-Year Plan,
would take its place.
Legal writers, scholars, and philosophers furnish the necessary
theological background without which no abstraction which gives
prestige to a human institution is able to survive.
Two illustrations of the effectiveness of the concept of sub-
stantive law in the public mind will suffice. A short time ago the
World Court decided against the German-Austrian Customs
Union. Newspapers generally regarded this as a political decision
and used it to prove that the World Court was not a court at all.
Of course the decision was no more political than most court
decisions on economic or social problems, but the fact that the
court lacked a complicated and generally respected logical science
for the interpretation of international affairs made it impossible
for it to make the result seem impersonal and inevitable. Hence
the criticism was directed at the court, instead of at the unfortu-
nate state of international law.
In West Virginia the board of public utilities was authorized
to grant water-power franchises. The question on which the
grant was to hang was whether the advantages to the state out-
weighed the disadvantages. The act allowed appeals first to the
circuit court and then to the Supreme Court. The grant of an
important franchise under this act became the subject of a bitter
political dispute. The action of the lawyers on the commission
was characterized as a "public utility grab" in spite of the fact
that there was no evidence of anything but the best of faith. On
20 See DIcynmsoN, ADnnmIsTRATIW JUSTICE AND TIM SUPREM-ACY oF LAW
(r927) 15, n.24.

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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 Co1 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).

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courts for which that confusion was responsible. The American

Law Institute is only part of this continuing effort. Law reviews
have been filled with attempts to clarify particular fields. The
usual method of attack, however, has been based on the assump-
tion that the confusion was the fault of an untutored judiciary
who had failed to reason and reconcile with that nicety which
the occasion required. Therefore, if the existing cases are only
thoroughly sifted, certain fundamental principles will finally ap-
pear which everyone must recognize to be the principles on which
appellate courts and trial courts must operate until relieved by
the legislature. The discovery of these principles depends on
the examination of what appellate courts have said, without any
particular regard to its utility. The reason utility can not be a test
is that substantive law governs society outside the courts, and can
only be changed by legislative enactment (except, of course, that
minor gaps can be filled or new principles discovered).
The effect of this notion has been to make our system of judi-
cial logic grow like a snowball. Since so many of our rules are
treated with the attitude of substantive law, it has been difficult
to talk about the problems involved. An ordinary rule can be
treated in the light of its purpose and bent to meet a practical
situation. A principle of substantive law can also be modified,
but not for practical considerations. A greater principle must
always be discovered. It is inevitable therefore that if many of
our problems are treated from the point of view of substantive
law, the bulk and complexity of the principles of that science
should increase beyond a point where any artificial attempt to
simplify by restatement is futile.
The only method of preventing the confusion of doctrines and
precedents is to treat them as ideals and general directions and
to insulate them from the cases which distort them into so many
complicated and difficult shapes. This seems paradoxical, yet it
is based on the obvious proposition that out of ten selected cases
a legal scholar can build a more coherent set of principles than
he can out of ten thousand chosen at random. We may illustrate
it by calling attention to the success of the English system. Here
we find no skeptics undermining its prestige. The supposed
superiority of the English judges is heralded with great humility
wherever American lawyers gather. This does not mean that

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the English judges are really superior, but that the conception
of substantive law is giving them a prestige which removes them
from individual criticism.
What has happened in England in the years following the Judi-
cature Act is not the sudden substitution of enlightened judges
for bigoted ones, but the insulation of the science of substantive
law from the practical problem of litigation. Instead of rigidly
applying the substantive-law doctrines through the principle of
stare decisis, as many imagine, the English have been devising
practical escapes which separate principles of substantive law
from the actual cases which confuse them. This has been done
by transferring power to the trial courts and making it difficult for
appellate courts to make a written application of doctrines to any
case not fought with unusual determination and disregard of ex-
pense. Thus substantive law exists at the top of the very prac-
tical English system as an ideal exposition of a way of thought
and expression.
The ways in which this has been accomplished are interesting.
First, that vast mass of principles which are treated in America
from a substantive law point of view under the name of pleading
and the various steps before trial, are removed from the logical
interpretation of appellate courts by the simple device of inter-
posing a master between the litigant and the judge.26 In criminal
cases the complicated substantive science loses its importance be-
cause the court of criminal appeal may treat cases individually
and even increase the penalty, instead of sitting solely as a court
of error." Third, the heavy imposition of costs makes appeal
difficult. The attorney who thinks that a principle of substan-
tive law is wrongly applied by a lower court must gamble very

26 23 HALSBURY, THE LAWS Or ENGLAND (1912) 135; Higgins, English Courts

and Procedure (r916) Ii BULL. Am. JUD.Soc. 40 et seq.
27 " The Act provides that the Court of Criminal Appeal shall allow an appeal

against conviction if it thinks the verdict of the jury should be set aside on the
ground that it is unreasonable or cannot be supported by the evidence or resulted
from a wrong decision on any question of law or if it thinks that on any ground
there was a miscarriage of justice. In all other cases it must dismiss the appeal and
in this connection it is provided that even though the court is of the opinion that the
point raised might be decided in favor of the appellant it may still dismiss the
appeal if it considers that 'no substantial miscarriage of justice has actually oc-
curred.'" HowARD, Ca-maNAL JusTIcE IN ENGLAND (1931) 280.

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heavily on his judgment if he wants it reviewed.28 Finally, only

selected cases are collected in the reports which make up the Hi-
braries of available citation. Six hundred and ninety-seven vol-
umes make up the relevant material for legal argument." We are
left to guess how many inconvenient cases from the point of view
of symmetry are buried under this important procedural device. 0
'What is left after all these selective processes constitutes the
"substantive law." Of course the cases are more easily recon-
ciled because one hundred cases can be reconciled in a much less
complicated way ihan a thousand. Thus, in England substantive
law performs its function as a philosophical guide divorced from
actual cases. Power is transferred to trial courts, and to judges
who are not dignified by that peculiar name. Judicial realism is
dormant as realism always is when a creed is fulfilling its func-
tion. 3 The very practical matters which determine litigation are
28 "As the costs in even a simple appeal may easily amount to £ioo or f200
it is obvious that a litigant will hesitate before taking this step." GOODHART, ESSAYS
IN JURISPRUDENCE AND THE COmmON LAW (1931) 215.
20 "Perhaps the reason why the English Lawyer is not dissatisfied with the
present system is that the 'myriad' precedents do not exist. The English cases to
1865 are reprinted in the English Reports in about 175 volumes. The semi-
official Law Reports from x865 to the present date occupy about 450 volumes.
Thus 625 volumes make up a complete working library." GOODHART, op. cit. supra
note 28, at 57.
30 " Only a small proportion of the decided cases are reported each year; unless
a case deals with a novel point of law-and novelty is strictly construed-it will
rarely find its way into the Reports. . . . It is hardly surprising to find that the
English lawyer has no difficulty in digesting the annual reports, and that he does
not, therefore, demand a change in the established system." GOODmRT, op. cit.
supra note 28, at 57.
Of course English writers would deny the statement that this selective process
is ever used as a method of avoiding inconvenient cases. The writer, however,
believes that a selective system of printing cases inevitably cuts down the pos-
sibility of encumbering legal principles with qualifications and exceptions, even
though this is not the conscious intent.
31 ", A search through the English periodicals since igoo does not show a single
article or note by an English lawyer in which the system has been adversely
criticized. No modern English poet has arisen to denounce the English Law as
Tennyson did seventy years ago:
'Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth or fame.'"
GoODBART, op. cit. supra note 28, at 56-57. The writer contends that the reason
the poets of today are silent is because the English have devised procedural escapes

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taken care of in a practical way. Criticism of decisions in the

way American decisions are criticised in our law reviews, does
not exist.
It is this ability of the English to keep an ideal from too close
contact with reality which explains the prestige which they are
able to throw around their institutions. There is little positive
evidence that results in English courts are better than in ours, if
we take into consideration the intricate tasks which our courts are
facing. The evidence is only of a dignified process where the di-
viding line between procedure and substantive law is so placed
that it increases the area of procedure and simplifies the judicial
expression of principle.
In France the code stands as the ultimate symbol of substantive
law. The work of commentators who are more interested in prin-
ciples than in reconciling all the cases is given great weight. And
finally, cases which make these principles stand out are selected
as precedents. The gap between the code and its principles and
the actual results is a matter concealed in the double trial af-
forded by the lower courts, which provides opportunity to treat
the practical problems of litigation in a practical way. Whatever
the demerits of the French judicial system, at least it has not be-
come verbally cumbersome.
In this country the Supreme Court of the United States, in deal-
ing with constitutional problems, has, in recent years, been rapidly
escaping from the position of the humble instrument of constitu-
tional doctrine, and is being studied and recognized as a great
judicial institution. This has been accomplished by a change of
attitude which permits us to study the Court, operating through
the language of the constitution, instead of the constitution, with
the Court appearing as an incidental agency of enforcement. The
skepticism of.Mr. Justice Holmes and Mr. Justice Brandeis, which
recognizes, on the one hand, that doctrines do not govern society,
and, on the other, that they can be used wisely and skilfully in
governing the Court, is the kind of skepticism which creates great
institutions. In this they have been aided by a few interpreters
who have broken down the attitude which created the old con-
ventional course in constitutional law of fifteen years ago. As
from the consequences of too rigid application of the rule of stare decisis, rather
than because of any sudden change in the nature of English judges.

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peculiarly effective in accomplishing this I may cite Frankfurter

and Powell of Harvard, and Hamilton of Yale. Frankfurter by
centering his attention first on the problem to be solved,32 and
then on the Supreme Court as an institution, as in The Busi-
ness of the Supreme Court " -Powell by his penetrating wit,
which is never used merely for the purpose of being funny, and
which illuminates like flashes of lightning, as in his "An Imagi-
nary Judicial Opinion" 34 - and Hamilton, with his beautifully
phrased constructive philosophy in which the utility and future
possibilities of the formulae of constitutional law in the hands of
an enlightened judge are demonstrated, as in his "The Jurist's
Art" " - have made the Supreme Court stand out as a living in-
strument of government. Never has the prestige of that Court
been higher. No one is worrying about restating constitutional
law so that it will be simpler and easier for that Court to apply it.
These formulae seemed to have slipped into their proper place, as
necessary tools with which the Court must work, which limit its
activities, and aid in the expression of the attitude and ideals
which it brings to the solution of governmental problems. And
the confusion incident to a written expression of these doctrines
in too many cases is prevented by a discretionary appeal.
That the bundles of concepts and logical systems found in such
fields as contracts or torts, are not different, except in the area of
their application, from the formulae of constitutional law, does not
seem to be so clearly recognized. 8 The constant attempt is to use
82 As in FRANKFURTER AND GREENE, TnE LABOR INJUNCTION (1930).
33 Frankfurter and Landis (1927). See also Frankfurter and Landis, The Busi-
ness of the Supreme Court at October Term, 1928 (1929) 43 HARV. L. REV. 33,
The Business of the Supreme Court at October Term, 1929 (1930) 44 id. i, The
Business of the Supreme Court at October Term, i93o (193") 45 id. 271.
34 (i93i) 44 HARv. L. REv. 889.
35 (193I) 31 COL. L. REv. 1073.
386This is becoming less true every year. Dean Pound in The Call for a
Realistic Jurisprudence set out the need for a discussion of the utility of doctrine
in the judicial process and also the relevancy of a study of the psychological factors
involved. (I931) 44 HARV. L. REV. 697. Leon Green, in JUDGE AND JURY (1930),
emphasizes the function of legal doctrine in the delimitation of functions of trial
and appellate courts and juries. Two recent articles in the Yale Law Journal
indicate by their titles that the function of legal concepts instead of their logical
analysis is the center of interest. Cormack, Legal Concepts in Cases of Eminent
Domain (1931) 42 YALE L. J. 221, and McCormick, The Parol Evidence Rule as a
ProceduralDevice for Control of the Jury (1932) 41 YALE L. 3. 365. Nevertheless
the statement still represents a widely prevalent attitude.

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them so that they will control, not the processes of the court, but
society in general. They are being continually rephrased in
various ways, so that their fundamental elements can become
more and more detailed and certain. The English trick of isolat-
ing them from the general run of litigation so that the effect of
the attitude which they induce and the general directions which
they furnish will not be lost, is not realized. An illustration may
be useful here. If A tells B to report an accident, giving only the
facts and omitting so far as possible his conclusions, this general
direction will unquestionably affect the type of report. But if
A and B insist on writing books about the differences between
facts and conclusions examining in detail all the reports which
have been handed in for the past ten years, the direction will
become unintelligible. The rule will fail to function if it is ana-
lyzed in every case. It will also fail to function if everything which
has been said about the difference between facts and conclusions,
and not expressly repudiated since the time of Lord Coke, must
be preserved and made relevant in the discussion of the report
which B makes."

PROCEDURE AS AN EsCAPE FROM SUBSTANTIVE LAW

Our judicial system, objectively examined, seems to be founded

on so many imponderable psychological factors that it can never
be molded by a direct attack upon its ideals without impairing its
prestige. On the other hand, its logical machinery is so elastic
that it is capable of tremendous changes if we understand the func-
tion which that logical machinery performs. And because of the
37 This is illustrated by an interesting controversy over the nature of the code
"Cause of Action." Dean Clark proposed a test which left the determination of
the extent of the cause to the discretion of the court, having in mind the facts of the
particular case. CLARX, CODE PLEADING (1928) 83. This was attacked on the
ground of (I) lack of certainty and (2) lack of symmetry by three able scholars
all of whom sought to define the fundamental elements of the term in the various
dissimilar situations in which it was used. McCaskill, Actions and Causes of Actions
(1925) 34 YALE L. J. 614; Harris, What is a Cause of Action (1928) 16 CALIF. L.
Rv. 459; Gavit, The Code Cause of Action: Joinder and Counterclaims (1930) 30
COL. L. RFv. 802. The significance of the controversy lies in the fact that in spite
of the dialectic ability of the three last named authors seeking the fundamental
elements of the "cause of action" they not only disagree with each other, but also
with the earlier definitions of the term.

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 SUBSTANTIVE LAW AND PROCEDURE

efforts of such men as Clark, Pound, and Sunderland to make

procedure a practical thing, followed by the missionary propa-
ganda found in such a periodical as the Journal of the American
JudicatureSociety, we find that today, by calling a body of doc-
trine procedure, we can take an entirely different attitude toward
it from that which we take where we call it substantive law. Any-
one can say that procedure is not fundamental, that it has only to
do with the legal process, that it does not govern the outside world,
that it always needs reform, and finally that the reform may be
accomplished by a consideration of the problem involved, not by
analyzing the fundamental principles involved in doctrine.
The distinction between procedure and substantive law is one
of the most interesting consequences of our attitude toward an
independent judiciary. Substantive law is sacred and funda-
mental. It represents the experience of the ages. On it is based
the freedom of the individual. It never needs reform because
its fundamental verities can always be discovered by logical
analysis. Procedure, on the other hand, is entirely practical. It
always needs, not logic, but change in the light of practical de-
tails. It is based on the experience of the ages also, but age with
it is senility, not wisdom. Yet, in spite of these fundamental
differences, no one has ever been able to formulate any test which
will distinguish between procedure and substantive law in any
particular case. Substantive law remains the " law " which we
enforce, procedure the practical rules by which we enforce it.
We therefore always "restate " substantive law in the light of its
principles, and "reform" procedure in the light of its practical
problems.
The distinction is most useful in the judicial system, once we
realize that the difference is only in attitude, that any doctrine
may be treated as procedure and the problem discussed, or as
substantive law and the principle stated. The difference be-
tween procedure and substantive law is a movable dividing line
which may be placed wherever an objective examination of our
judicial institutions indicates is necessary. Illustrations of this
may be multiplied indefinitely. We will confine ourselves to two.
The problem of the distribution of legal business between states
may be considered from the substantive-law angle under the
topics of conflicts of laws, collateral attack, process, presumptions

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 HARVARD LAW REVIEW

in favor of a court of general jurisdiction, the distinction between

lack of jurisdiction and error in exercising it, the distinction be-
tween domicil and mere residence, the concept of doing business,
express and implied consent to be sued, conceptions of local and
transitory actions, and so on indefinitely. Or it may be considered
from the procedural angle as a practical problem of determining
the place of trial in civil actions, as Mr. Roger Foster does in two
illuminating articles. 8 From such a point of view the concepts
and theories disappear as irrelevant, without even doing violence
to the rule of stare decisis. It becomes apparent that if the court
will only talk about the problem it can easily escape the conse-
quences of a philosophy which is quite unfitted for its solution.
Or if it can not, in any given instance, we will at least know how
to draft an act which will treat the problem procedurally. An-
other example is found in the method by which the law of sales
determines where the loss of goods destroyed by fire should fall
as between buyer and seller. Obviously what the doctrine is
doing is determining in what cases the determination of liability
shall be left to a jury. Treated substantively we find that it de-
pends on whether "title" passed, which in turn depends on the
"intent" of the parties, which in turn may depend on certain
presumptions, from which the jury must find intent. The jury
is never permitted to find the real fact - that the parties had no
actual intent at the time because they were thinking neither of
"title " nor of loss by fire. Treated procedurally we would talk
not of intent but of the distribution of power between the court
and jury. Probably the sales question is better solved by the
apparent uniformity of the doctrine where no better practical
solution is offered,3" and probably the place of trial can be better
solved by a procedural treatment because the doctrine includes
so many dissimilar things.4" We use the illustrations merely to
38 Foster, Place of Trial in Civil Actions (1930) 43 HARv. L. REv. 1217, Place
of Trial-Interstate Application of Intrastate Methods of Adjustment (i93o)
44id. 41.
39 The uniform sales act in its generalizations as to when title passes, offers a
simple set of principles which are not descriptive of the numberless situations
where they are employed, but which serve as a classification of these cases at least
as good as any which the writer has seen suggested.
40 To the writer's mind Mr. Foster establishes this conclusively in his articles.
See note 38, supra.

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 SUBSTANTIVE LAW AND PROCEDURE

show that there is no doctrine of stare decisis, as opposed to stare

dictum, which prevents us from considering the practical utility
of treating any problem from a procedural point of view. Sub-
stantive law is canonized procedure. Procedure is unfrocked
substantive law.
In view of these existing legal attitudes, emphasis on the pro-
cedural aspects, rather than on the underlying principles of any
legal doctrine can afford an effective method for immediately re-
lieving courts and attorneys of much of the burden arising from
the myriad precedents in this country. The law of negligence, for
example, deals for the most part with (i) the distribution of power
between trial courts and juries and (2) the ritual by which the
jury is put in the proper frame of mind to determine liability.
The substantive-law solution is in part a textbook, written through
the medium of instructions, against a background of conflicting
results which certainly are not determined by those instructions.
Our formulae concerning non-prejudicial error, and the jury's
power over questions of " fact" are sufficiently loose that we may,
if we wish, consider instructions in the light of their purpose,4 and
remove the cases which deal with them from cases dealing with the
question whether the jury is to be permitted to pass on the ques-
tion at all. Thus we may treat any part of our substantive law
from a procedural point of view. The selection need not be based
on history but on objective utility.
In determining the utility of doctrine it is important to recog-
nize that the function of the legal scholar as critic or reformer is
different from that of the judge writing an opinion. The for-
mer may state his position from the point of view of an ob-
jective examination of the court as an institution. The latter
must deal with doctrines as realities. The penalty of uncom-
promising realism on the part of the judge is the disappearance
41 It is assumed here that if the sole purpose of instructions in negligence cases
were to put the jury, unfamiliar with legal concepts, in the proper frame of mind to
determine liability, and such instructions were not considered as accurate expres-
sions of the "law of negligence" many of our elaborate definitions of negligence,
and its qualifying doctrines, would disappear. The two questions, when will a
court permit a jury to pass on a case, and how will the court talk to the jury,
could be sharply distinguished in any formulation of negligence law which treated
the question as one of distribution of power. See GREFN, JuD,m uRy (i930)
JAD
153 et seq.

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 HARVARD LAW REVIEW

of courts as we now know them. The penalty of the belief that

the legal scholar need only state fundamental principles in a
judicial way is that uncompromising realists will flourish. The
imponderable psychological factors involved in the necessity that
critics and judges adopt different standards of values in their
respective r~les may be expressed in an analogy.
The operation of our judicial institutions may be likened to the
presentation of a play. The judges are the actors on the stage
moving the audience with great lines, impressively delivered. To
some in the audience the lines carry moral lessons, inspirational
ideals, and definite directions as to how they should act in situa-
tions similar to the one presented. To others the lines have the
moving effect of great art. Every audience will contain both
types, and every person in the audience will swing backward and
forward between these two points of view. The litigant who has
sponsored the performance has been ushered out because he was
disturbing the audience (just as the formulation of the principles
of substantive law is constantly aimed at getting rid of the litigant
by making the law so certain that litigation will be unnecessary,
or telling him to resort to arbitration, or the action of a com-
mission). Unquestionably the play is exercising a stabilizing
influence on the manners and customs of the community.
Suppose into this very satisfactory situation we introduce a
realist who insists on interrupting the actors in their most im-
pressive speeches by telling the audience that it is only a theatrical
performance. Or suppose that one of the actors bends over the
footlights in an aside to explain that he is only an actor in a play.
Obviously the effect of the play is destroyed.
Suppose, on the other hand, that the directors of the play are
composed of fundamentalists who are firmly convinced of the
truth and objective importance of the great lines of all the plays
in the past. Because of that belief they insist that the principle
actor repeat Hamlet's soliloquy in " Desire Under the Elms."
Such a restatement would destroy the play as effectively as the
interruptions of the realists, and might even make the play so
dull that the audience would prefer to listen to the realist rather
than the actors. The only worthwhile critic or director would be
the one who considered the utility of any line to produce the effect
at which he consciously aimed within the limits of the setting in
which it was to be delivered.

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Such a figure of speech is significant, not in depicting absolute

truth but in picturing what the writer considers to be a useful
attitude in America today. The details of legal philosophy are
not so significant as the general attitudes or approaches to prob-
lems which they induce. There is no absolutely true approach
because "in the house of jurisprudence there are many man-
sions." 4 2 The happy phrase " relativist-realist jurisprudence " "
recently coined by Dean Pound is a short way of saying that an
objective examination of courts may not be so necessary in Eng-
land where appellate courts confine their observations to a few
hundred volumes as it is in America when we seek to prevent
the confusion of a yearly output of twenty-five thousand printed
opinions. We have a very practical problem before us, to make
our way of judicial expression more intelligible, and our judicial
principles and ideals more effective. The writer thinks that it can
only be solved by determining what problems may be removed
from the rigid impersonal atmosphere of substantive law and
brought down into the practical atmosphere of procedure. This is
not a denial of the necessity of a rigid philosophy of substantive
law in our judicial system. It is simply an attempt to point out
that the legal scholar or critic, by centering his attention on the
judicial institution in connection with the problems with which it
is confronted, can determine which of these problems should be
treated with the attitude of substantive law, and which with the
attitude of "procedure." " In that way rather than in the as-
sumption that historical categories can only be changed by legis-
latures, which do not and can not understand them, lies the way
to the clarification of our judicial expression. Without an objec-
tive examination of the judicial institution itself, we are likely to
be trapped by our old phrases, and to feel that we must continue
to use them long after this utility has disappeared.
Thurman Arnold.
YALE LAW ScHoOL.
42 Pound, supra note xg, at 711.
43 Id. at 710.
44 It must be apparent that the writer has used the terms "substantive law" and
"procedure" to describe different attitudes, rather than the classification found in
the law school curriculum. Many of the concepts which are ordinarily denomi-
nated "procedural" have been treated with the attitude of "substantive law"
though this is becoming less frequent. See McCaskill; Harris; and Gavit, all
supra note 37.

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