The Newer Justice




IF we were transported to the shores of Borneo, we might see a group of natives gathered together under the tropical palms, watching two men sitting on their haunches, facing each other across an earthenware dish containing lime-water. Each holds a clam in his raised hand, and, at a signal, drops it into the lime-water. It would not occur to us that this is a Court of Justice, that the two men leaning over the dish are litigants, and that he whose clam first winces on falling into the lime-water loses the case. The people of Borneo believe that their gods give this as a sign to show who is in the right.

This seems a curious method; yet less than a thousand years ago our ancestors tried their cases according to the same principle. They did not dip clams in lime-water, but used other means of getting what they thought to be an expression of the Divine will. For example, in trying a man accused of theft, a long pointed stick was placed between the pages of the psalm-book at the words, ‘Thou art just, O Lord, and thy judgment is right.’ Two persons held the stick between them, with the psalter hanging down; and at the upper pointed end there was a wooden needle, like that of a compass, carefully balanced that it might turn. The accused was made to stand before them, and one of those holding the stick said to the other, three times, ‘He has this thing,’ and the other replied, ‘He has it not.’ Then the priest said, ‘May He deign to make this clear to us by whose judgment all things in Heaven and earth are given. Thou art just, O Lord, and thy judgment is right; turn away the iniquities of mine enemies and thy truth scatter them.’ Then, if the needle turned in the course of the sun, the accused was held guiltless; if it turned the other way, he was punished for the crime.

These two illustrations, one from Borneo and the other from the France and Germany of the Middle Ages, typify the primitive method of arriving at justice. It is crude and bears no relation to the matter in dispute. Men looked for a Divine sign to tell them who was right. They did this in the early days of all civilizations.

When we think of ‘justice,’ our minds picture immutable principles of right, innate in our consciences, which have been recognized by mankind since the earliest days. There is a court scene in one of Racine’s plays, where the young lawyer rises to propound a thesis which he believed had had the approval of mankind from earliest days. ‘Before the beginning of the world,’ he begins; and is interrupted by the judge who says, ‘Pardon me, young man, but let us pass on to the Flood.’

In truth, men’s ideas of justice have changed from the earliest times; and we are witnessing to-day greater and more rapid changes than have previously occurred in the world’s history. The first stage is illustrated by the trial in Borneo; the second by the fixed and formal procedure of The Merchant of Venice. Shylock may have his exact pound of flesh, but

This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh.’
Take then thy bond, take thou thy pound of flesh;
But in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate Unto the state of Venice.

The third stage, which began in England during the sixteenth century, was in the direction of doing away with the rigid formulas and allowing the Lord Chancellor to do equity, that is, to consider the facts and decide as he personally thinks in accord with moral ideas. Theoretically this is a good plan, but it soon developed as great abuses as the system it supplanted. To be successful, it presupposes a judge of great learning, of great probity, and great wisdom — qualifications very difficult to find in practice. And it was found that decisions, instead of being equitable, reflected the bias of individual judges, as they were no longer in accordance with rule. The next movement was in the direction of making rules for the guidance of the courts through legislation. We all lament the great volume of law passed annually or biennially by all state legislatures. It is, in large part, a codifying of the prevalent ideas of right conduct. It marks a tendency back to the second stage of development, — a stage of rules and formulas, — but now leavened with the moral sense of the community. The fundamental ideas of this stage of legal development are equality before the law, and security of persons and property. And this security is based on property and contract as fundamental ideas.

This system is the one under which our generations grew up. Its contribution to the science of administering justice is through working out the idea of individual rights. They are put at the foundation of the legal system, and these rights are largely of property and contract.

From the point of view of this stage of legal development Joseph H. Choate was entirely justified when he said in his argument in the Income-Tax cases that a fundamental object of the law was the preservation of the rights of private property. This system exalts property and lowers the value of the person. In the last quarter of the last century, and even in the first decade of this, it was the commonly accepted theory of promoting justice. An extreme case of this was the decision by Justice Field, which is still the law in California, that a woman is not entitled to a divorce for failure to provide, even if her husband has contributed nothing to her support, if in the meantime she has earned a living for herself. For her earnings are community property, over which the husband has control, and if he allows her to keep them and live off them, he is supporting her! We still have (though in diminishing numbers) the strict and upright judge who aims to decide each case in the cold and pure light of the law. His conscience is always clear; and he retires each night serene in the knowledge of duty well done, first looking under the bed to make sure that no idea of social betterment lurks there, to disturb his peaceful slumbers.

Within the last few years a tendency has become manifest to inquire whether this strict insistence upon the right of property and contract does really promote justice. We are turning again toward moral ideas; but this time moral ideas have taken on a new form. The social sciences are teaching us the interdependence of all people in the community, and that the enforcement of a contractual right may work an injury upon the community. The old theory of freedom of contract is found to be practically false. A man working for a mining company, the sole employer in a given locality, is theoretically free to accept employment on the terms offered; but practically there is no such freedom. Starvation is the alternative to accepting a job on the company’s terms. The law is therefore stepping in and taking away the so-called freedom to contract, by such laws as minimumwage laws; by abolition of the company stores; by acts requiring payment in money at stated intervals, exempting certain property from execution, and so forth. It is being seen more and more clearly that the community as a whole is interested in the welfare of each individual, and that, as the condition of one class improves, the condition of the entire community is bettered. We have not gone very far along this road, but the dependence of all upon each is being more clearly recognized each day. We see that causes operating injuriously to one class will presently affect all. The world is in the situation of the man who, when his wife had indigestion, took a pill, on the sound theory that, having eaten the same thing, he would have the indigestion sooner or later.


Justice has been thought of largely in the past tense, as being a matter merely of court administration; and the courts never have been well equipped to control future conduct or prevent future injustice. To illustrate: if a man were injured through the negligence of a common carrier, a judgment in such amount as the jury considered a fair compensation for the injury was supposed to do justice to the injured man. But in practice this is not so. The injured person has to employ an attorney, so that from a third to a half of what he receives goes for expenses of litigation. A large part of his own time is spent in waiting on his attorney and the courts, and this is a loss for which he receives nothing. The strain under which he labors during the period of litigation probably prevents him from rehabilitating himself and fitting himself for a new occupation. The long delay before receiving his money may force his young children to earn a living instead of completing their educations, and preparing for better and more useful positions in life. It is evident that this law of damages does not in any sense bring about a just result, either to the man himself, or to his children from whom opportunity has been taken. It is a failure in a social sense. It takes the facts as of the date of the injury, and does not consider the daily change in circumstances that occurs to every human being and those who are dependent upon him or who have relations with him.

The Roman law-writer Ulpian expressed a much broader view of justice in his definition that ‘justice is the constant and perpetual desire to give every man his due.’ If we understand the expression ‘his due’ to mean the satisfaction of his reasonable wants, due regard being had to its effect upon the reasonable wants of his neighbor, we get a definition more nearly in accord with the trend of present-day thought.

The modern idea of justice regards life as a growing organism, constantly changing its form, and endeavors to mould the course of the future as well as to pass judgment on the past. To cite a recent illustration — we have in California a Corporation Commissioner whose business it is to see that securities are not offered to the public unless they comply with certain minimum requirements that make for the safety of the investment. He does not guarantee that an investment is sound, but many elements of fraud and of risk are removed. The old plan, under the legal doctrine of caveat emptor (let the purchaser beware), left the burden of inquiry entirely upon the investor, who, nine times out of ten, was not qualified to make the necessary inquiry and had not the necessary data to form a judgment. If he made a mistake, he was left with a right of action which might be valueless because of the difficulties of proof, or of the insolvency of the promoters. A judgment might have no value. Justice in the sense of giving him his due could not be obtained.

This illustration brings home to us very forcibly that justice is not merely the enforcement of rights by the courts. It is not a matter of merely remedying past conduct or of redressing wrongs that have been committed. It should consist also in ordering life so that injuries do not occur.

A generation ago, the great lawyer was the man who swayed juries or whose clear reasoning obtained favorable judgments from the court. The office-lawyer is now the more successful man, judged by his income; and he is also the more useful man, if we consider his real function to be promoting justice. The old jibe that the successful lawyer is the one who best advises his clients to break the spirit of the law, while obeying its letter and remaining immune from prosecution, has a basis of fact; but that sort of thing is occupying a smaller and smaller place in the activities of the office-lawyer. His business is to make business work smoothly — to do away with the causes of contention which mean lost motion and inefficiency in the business world. He is becoming a business adviser as well as a legal adviser. By removing friction and by mapping out better methods, he is coming to occupy more and more the position of one who makes a real contribution to the production of the world’s wealth. He is the lubricant in the machine of business. And when he comes to realize that business is not concerned merely with property and contract, but deals in human values, and that its welfare and that of the community are indissolubly bound together, he will return to the position of leadership in the community that was his in the middle of the last century.

The new conception of justice is emerging from the conflict between capital and labor, and both sides of the controversy are making definite and positive contributions. The labor-union movement, which has been groping its way for many decades, arose or became powerful when we were making a god of property and contract rights; when the theory that men are free to contract as they will was pushed to such an extreme that it threatened the welfare of the race. Sweatshops, forcing women and children to work long hours, sapping their vitality, denying them leisure and opportunity for education and advancement, were the normal thing under the old theory of freedom of contract. Now we see that this principle, like all principles of law, must be modified in the social interest. Whenever rights of property or contract are seen to work harm instead of good, a change has been, or will be, made in the direction of ‘giving every man his due,’ or permitting him to satisfy his reasonable wants, without interfering with a like privilege in his neighbor.

It is a noteworthy fact that extreme cases of disregard of the human values have been responsible for the two periods in our history when the United States Supreme Court was in disrepute. The Dred Scott case precipitated the Civil War; and the income-tax decision in the nineties, preventing the government from taxing people according to their means, lowered the respect of the people, not only for that court, but for all courts.

One of the fundamental difficulties in adjusting the conflict between capital and labor is the insistence, by capital, on the supremacy of property and contract rights; while labor urges that these should be limited and modified in the social interest. Labor is gradually making headway; and that headway will be much accelerated by the growing knowledge that what is in the social interest is also good business and productive of dividends.

The recent draft law taught us a great deal about the importance of proper living conditions. It brought about a partial inventory of the human resources of the country; and it was found that about 30 per cent of the young men of the country between the ages of twenty-one and thirty-one, when they should have been at their best, were unfit for strenuous military service. Of these, the major part were unfit because of social conditions. I do not mean by this to say that they were products of the slums. And while I have no exact data on the subject, my observation as member of an exemption board leads me to the belief that if this 30 per cent of unfit had been brought up in the proper surroundings, with wise parents to guide their development, very few of them would have failed to pass the most rigid tests. In other words, their defects had been caused largely by their surroundings or conditions in life.

Now the effect upon the industry of the nation of this high percentage of subnormal lives is bad — distinctly bad, judged even by the most cold-blooded, calculating material standard. For the industrial product of these people is necessarily inferior. Capital is learning this, and a very serious effort is now being made to improve the quality of labor and to reduce the labor turnover. Better working conditions are the order of the day. Progressive employers are voluntarily offering more favorable conditions to their employees. They are themselves recognizing the wisdom of framing their contracts in the social interest. This change has come about through the pressure of labor-unions, which has aroused public opinion,which in turn has forced legislation, and which is finally educating the employers, so that the more intelligent and farseeing of them accept this type of law gladly, and find that in the long run it is ‘good business.’ A few years ago one never heard of a playground for the employees of an industrial plant. To-day, as we ride from the suburbs into the larger cities through manufacturing districts, we see the employees playing volley-ball or quoits on playgrounds outfitted by the factories. Some of them operate schools and gymnasiums as well.


We are witnessing to-day the beginning of a new movement, which may go far. I mean the government control of business in the public interest. The Interstate Commerce Commission has been functioning for over thirty years, limiting the freedom of contract between the railroads and the shipper, by fixing rates and the character of service, and preventing discrimination between different patrons of the road. ‘Innkeepers’ must afford accommodations to all who apply; and in California they must furnish nine-foot sheets. During the war the government fixed the price of wheat, of steel, and of many other commodities. This was done ‘to win the war’ — which is another way of saying ‘for the common good.’

How far will this principle be applied ? It is hard to say. But that it will go further, there is no doubt. Recently, here in Berkeley, an attempt was made to have milk declared a public utility, over which a more complete public control could be exercised. The attempt failed; yet if we look over what has been done by law to regulate that business, by introducing the tuberculin test in our dairies, and by prescribing standards of cleanliness in producing and distributing milk, we cannot fail to be impressed with the length to which the law has gone within the last few years, in invading what used to be thought of as the sacred rights of property.

Curiously enough, this regulation of business is an ancient principle of the common law, though it has survived in the last few centuries only in such departments as common carriers, who must serve on equal terms all those who apply, and innkeepers, who must afford entertainment to all comers so long as accommodations are available. The ancient ‘Year Books,’ which contain the earliest records of court decisions in England, reveal to us that some centuries ago business was generally regarded as of public interest. The ’common farrier’ must shoe any horse brought to him; the ‘common mill’ must grind everybody’s grain; the ’common shaver’ must barber everyone.

But gradually these occupations lost their public character, and became private businesses, run (supposedly) in the sole interests of their owners. Even the ‘common scold’ disappeared with the abolition of the ducking-stool.

There is a marked reaction now going on; a real tendency to return to this ancient principle. I am not referring to extremecases, — such as declaring milk a public utility, — but to the means applied by business itself to make money; to what is considered ‘good business.’ ‘Service’ is now the watchword. We see it blazoned on the billboards at night; and the newspapers are full of it by day. Advertising men have taken Truth as their motto. It pays.

Now what does this really mean, in terms of the relation of business with the public? It means that business recognizes that, to be successful, it must supply the reasonable wants of the public, continuously, with a standardized product that can be depended on, year in and year out; it does away with individual bargaining, and sells to all comers alike, at fixed prices that are reasonable to the public and yield a fair profit to the manufacturer. It is not such a far cry from the ‘common farrier’ who shod each horse offered at a fixed price, because that was the condition of his trade. Does it not fit in with Ulpian’s definition of justice — the constant and perpetual desire to give each man his due?


We seem to have wandered far from the courts, in our search for justice in this modern world. And rightly, too. For the courts have been engaged, primarily, in dealing with the past — with acts that leave consequences, perhaps, but consequences ordinarily must be judged as of the date of the acts themselves. And as we think about it, we see that, when the courts’ decisions come, they often seem like an unhealed graft upon the tree of life, instead of a stately branch that has grown there. We have been accustomed to think of the courts as the only public instruments of justice; and in truth it has been largely so. Not strictly, in a historic sense, for exceptions may be found; but one of the most significant developments of the last generation — a development that is in its infancy — is the growth of institutions that parallel the courts, and that ultimately will have the greatest influence in promoting justice.

I have said that the courts act upon what is past. That is not true in an exact sense, because some of the processes of the court, such as injunctions and decrees of specific performance, control future conduct. But it may be said that the regulation of future conduct is very imperfectly done by them. They may paint the signpost, but they do not turn the horse’s head into the right road. And, after all, justice consists, not in correcting or punishing past injustice, but ‘in the constant and perpetual desire to satisfy the reasonable wants of every man.’

Institutions to do this are springing up on every hand. Some are volunteer organizations, not endowed by the state with any public functions — as, for instance, advertising associations, chambers of commerce, labor unions, and other bodies, which do a great deal to create ‘just’ conditions by moulding public opinion and laws and by bargaining. But as the need for solving specific and clearly seen problems arises, the state provides an agency for performing them. Let us glance back a moment, and see how.

Toward the end of the last century, — the period which Roscoe Pound calls that of the ‘maturity of the law,’ — emphasis was placed upon individual rights: security and the inviolability of property and contract. At the same time, in America at least, court procedure was so slow and expensive that great dissatisfaction was felt with the administration of the law. So that, when changes were made in the substantive law, by socializing it, by limiting the rights of property and freedom of contract, other agencies than the courts were created to enforce them. Our Industrial Accident Board is an instance of this. The principle of law that was grafted upon our institutions was that the employer insures his employees against industrial accidents, and is liable for a predetermined compensation, even though he be without fault. And instead of leaving this to be adjudicated by the courts, we create a new body whose duty it is, not only to determine the compensation, but to prevent, or reduce the number of accidents by appropriate regulation of industry. We have connected the past with the future; we remedy, in a way, the injury sustained, realizing the while that socalled ‘compensation’ is always inadequate, and that the real cure for industrial accident is its prevention, through safety devices and the proper training of employers and employees. Our courts are not equipped to do this. They still need to be vastly improved before the ‘justice’ they render — even in the limited sphere allotted to them — is at all adequate. If we compare an action for damage for personal injuries against a railroad, with its long delays, new trials, appeals, and heart-breaking expense, with the speed and certainty of an award by the Industrial Accident Board to an employee injured in the same accident, we cannot fail to be impressed with the failure of the court and its legal rules and processes. Our new agency not only looks to the future and prevents injuries in untold cases, but substitutes easily applied and certain rules of compensation and a summary procedure for the legal refinements and slow processes of the courts. A great deal of the speed and certainty is due, doubtless, to having experts to make the decisions; but the more certain rules of law and the simplified procedure account for most of it.

This principle, of having a body of specialists to pass on existing facts and lay down rules of future conduct having the force of law, is one that is receiving wide application. The Interstate Commerce Commission was its first conspicuous success in this country. Its business is primarily to find out what are ‘reasonable’ rates for interstate transportation, and to enforce them.

And what is that but an endeavor ’to give each man his due’? The ultimate test of a rate is: is it fair — fair to the railroad, to its security-holders, to the shippers, and to the public? Our state public utility commissions do the same with intrastate commerce, and regulate the rates that may be charged by all public utilities and the service they render the public, at the same time controlling the capital that goes into them and the manner of its expenditure.

These are two, merely, of the agencies created to equalize opportunities — for by equalizing them we more closely satisfy the reasonable wants of all. In some European countries ‘Commerce Courts,’ where matters of business are speedily and summarily decided, work differently, but toward the same end. I shall not attempt to catalogue the business institutions, official and unofficial, that have this for their aim; it is sufficient to point out that these agencies have made good, and are promoting justice through their control of future conduct. They promote justice largely in the sense that it is more just to educate a man to avoid crime, than to tempt him or let him fail through his ignorance, and then punish him for it.


An equally important change is happening within the courts themselves. I mean the change typified in the Juvenile Courts, Courts of Domestic Relations, and so forth. The significant thing about them is not that those brought before them are not treated as criminals; it is that their delinquencies or failures are related to their surrounding and their lives. They are treated as social beings. We all remember when the boy who stole was imprisoned with confirmed criminals, without inquiry into his antecedents, his family, or his surroundings. Sometimes he was sent to a reform school, which was anything but what its name implies. We do differently now. In the more progressive states — and fortunately California is included in the number — we have probation officers, visiting nurses, and social workers, who find out why the boy has done wrong, and help to remove the causes, and to create conditions favorable to right living. Domestic Relations Courts, where they exist, operate in the same way. And latterly, through psychopathic clinics and sympathetic handling, it has become possible to fit the delinquents into some place in life where they can develop the good that is in them, secure from the temptations to which they yielded. In other words, these ‘Courts of Justice,’ with their technically trained assistants, no longer spend their time deciding whether crime has been committed; they are engaged in moulding lives into greater usefulness, and in giving opportunities and training that those who come before them have not had. ‘Justice’ wears a changed aspect there. It is more like Janus — looking backward, it is true, to find out what happened; but looking forward, also, with the wisdom of experience, and confidently facing a brighter future.

A very significant thing about this, and one which to my mind portends a great change in the administration of our Anglo-Saxon laws, is that in the Juvenile Court, the Domestic Relations Court, and the special tribunals, such as the Interstate Commerce Commission, the method of ascertaining the facts is departing more and more from that sanctioned by law in the courts. We are all tempted to laugh when the trial-lawyer jumps up to remark that a question is ’irrelevant, incompetent, and immaterial.’ And yet that objection is responsible for a great many new trials, appeals and reversals, and failures of justice. The objection amounts to this: that the evidence, if given, should be disregarded in rendering a decision. And the distrust of our courts seems to have reached the point that we fear that, if the answer is given, the judge or jury will not have sense enough to disregard it.

Now the judge of the Juvenile Court listens to everything; finds out all about the child, his parents, his surroundings, and knows a lot about the relation of the child with others that he could never have learned sitting as a trial judge in a criminal case. And he is wise enough to use some of that knowledge, too. He is working for the future of the child, as well as judging his past. He is trying to fit him into society, and does it better for all this latitude in questioning. Another thing. The court itself collects in an expert way much of the evidence on which it acts, instead of depending on the testimony brought to it. The psychopathic expert, the social worker, the probation officer are trained observers. Our Railroad Commission, through its engineering staff, collects most of the data on which it acts. It wastes little time in lawyers’ wrangles over facts it has itself ascertained. These methods make for speedy judgments and fair ones. On the other hand, expert opinion, as used in the courts, is almost a byword; it is furnished by the interested parties, and experience has shown that, generally speaking, it is unreliable.

This new method of getting information is sound common sense. It is the way we act in our ordinary affairs in reaching judgments; and used by trained minds, it presents little danger of injustice. It is the method of taking testimony used in Continental Europe, where the Roman Law furnishes the basis of the judicial systems. And we find that it is used in practice in our inferior courts, when the record is not taken by a court reporter, and that it promotes speed and, in the hands of able men, justice also.

It is probable that this method of ascertaining the facts will find wider application as time goes on.

The limits of this article do not permit a consideration of the subject of justice for the poor, which is rightly receiving the increasing attention of jurists. Ex-President Taft said in an address to the Virginia Bar Association, ‘Of all the questions which are before the American people I regard no one as more important than the improvement of the administration of justice. We must make it so that the poor man will have as nearly as possible an equal opportunity in litigation with the rich man, and under present conditions, ashamed as we may be of it, this is not the fact.’ We have reasonable grounds to believe that the Conciliation and Arbitration Courts, the Small Claims Courts, Public Defenders, and other experiments now being tried, will help to remedy this inequality and gradually effect a new standard in this field.

Thus the changes that are taking place in our conception of justice, both as to substantive law and on the side of its administration, are in the direction of humanizing it, of making the remedies available to all, of recognizing the dependence of people upon each other, and of making the law fit the changing needs of the individual and the community. They are bringing closer the day when justice will be what Ulpian called it, ’the constant and perpetual desire to give each man his due.’