Not only with a more spacious compass but also with with more eloquence, ferocity, and spirit than perphaps has ever before been evinced in American culture, the position and role of law and the lawyer in our society is one constantly enthralled in criticism. The criticism, no matter how carping or ingenuous in motivation, emanates partly from a factual basis and partly from vagaries as to what are the potentalities and actualities of our legal norms and sanctions, criticism that neither the lawyer--whether a member of the bar, bench or law school faculty--nor the layman can disregard or slight by shifting the blame and responsiblities to other shoulders, criticism that reveals a situation that springs from confusion and miscomphension of the societal roles of the lawyer and layman alike. As a predigious ingredient contributing to the nascent criticism of the law, we should mention the vast repercussions of the social metamorphosis of the late nineteenth and early twqentieth centuries culminating in the incredibly-huge bureaucratic and impersonal mechanism of the New Deal--a social metamorphosis issuing from transitional changes that were from the fabric of an agrarian and non-industrial civilization; a social metamphosis not only suggesting but also compelling corresponding changes in the idealogical (including the legal) fabric of American culkture.

Added now to the myriad of reported judicial decisions and statutory enactments are not only the myriad of reported administrative hearings and decisions but also an incredibly complex and loosely integrated system of administrative rules and regulations, complicated by overlapping authority of administrative rules and regulations and by constant revision, in whole or in part, of the administrative rules and regulations themselves. Even the lawyer finds himself in no mans land: We should not be startled that the layman is bewildered, confused and yes, astonished, at what seems to him thr mere vagaries and caprice of individual bureaucrates.

The criticism directed against the lawyer is that law`s esoteric complexity and sesquipedalian nature has become the pecuniary asset of the lawyer, that the lawyer (with the convenient genial co-operation of the judiciary) has purposively made law complex and esoteric in order that the legally uniniated layman must avail of the services of an attorney, and that law as a consequence no longer serves as an adequate and just means of settling controveries. These allegations in so far as they are directed against the growing complexity of the law do have a factual basis. Yet, to declare that such complexity is the result of collective avarice on the part of the legal profession reveals a deep miscomphresion of the real nature and causes of legal complexity. As long as the public deceives itself as to the real causes of increasing complexity of the law, the clarification and simplification of the law will remain in the area of wishful thinking.

In our inquiry into, and our apologia for, the law, we shall discover not only that neither the lawyer nor the judge is primarily responsible for legal complexity but also that a certain degree of complexity in the law is the necessary concomitance of the abstract nature of the law--an abstract nature that cannot be eliminaterd without eliminating also the general rules and sanctions of the law: General rules and sanctions are ingedients of law that have always been considered highly desirable, if not essential, in any advanced legal system.

However, this writer personally believes that an ad hoc system of legal determination with rules and sanctions originating and dying with each individual legal proceeding is axiologically preferable; but at our present stage of social and moral awareness and development, a system of ad hoc rules and sanctions may not be advisable on account of the capriciously protean nature of twentieth century man. We shall also discover in our inquiry that legal complexity is primarily the responsibility of the over-worked legislator. Since the legislator cannot be expected to carry such a burden alone, the solution is reached by having the legislator delegate the task of legal clarification and simplification to a subbordinated body established especially for this purpose. Lastly, we shall discover that legal clarification and simplification may not only be a highly desirable aim but also an essential aim if we are to preserve our form of democracy founded upon respect for the individual.

Our view is that reform in clarifying and simplfying the law is required. Otherwise, the inherent tendency of law to use its very norms and sanctions in a self-defeating process will continue and will threaten the very norms and sanctions required for the American democracy. Whether we are repulicans or democrats, we should recognize that bureaucracy and the welfare state are here to stay. Too much time and effort has gone into arguing the pros and cons of various methods of societal intervention. The fact is that intervention is an existing and growing reality and will continue to grow whether a republican or democrat is president. The real dilemma, the existing predicament, must be met: How can we have a system of bureaucracy without destroying the very features of American life that the bureaucracy was set up to protect, fulfill, and further? Checks must be put on arbitrary and capricious governmental actions, the great bulk of rules and regulations must somehow be reduced, and the law in general must be clarified and simplified.

In this essay, we intent in part to inquire into the capacities and limitations of law and in part to inquire into what is wrong with the law. We are necessarily assuming that law is not fulfiling its full potentialities; and we recognize that our inquiry will be based upom the law`s affinity with and reciprocal dependence upon our dedication to democxratic principles. To gain a lucid understanding of law and its operating procedures, we will first inquire into law`s system of abstractions, an enveloping matrix of an intricate mosaic of legal norms. The abstract character of law is the most striking feature of judge-made law, yet it is by no means absent from statutory and adminisrative law. An abstraction connotes, by its intrinsic nature, an absolute meaning; but by connoting this absolute meaning the very purpose of the abstraction is defeated in some situations where it would otherwise be appropriate. For example, take the ethical abstraction and sententious command: thou shalt not kill. By carrying this ethical precept to its logfical extreme, we reach a result that would definitely be unethical according to the view of a substantial proportion of the American peoplw. Mercy killing and killing in self-preservation is considered ethical by many people. A moral or legal abstraction is self-defeating since perforce it ignores some of the actual circumstances surrounding the abstraction`s applicability and must ignore some consequences of its applicability. The precept`s verbal neglect of the circumstances and consequences is due to their unpredicability and the constancy of transformational changes in the field of action or milieu in which the recept is intended to apply. Thus, under a Deweyan philosophy, if the abstraction is applied in all situations where it would otherwise be appropriate the result is unethical.

This character of abstractions must be kept in mind in our analysis of law. Legal rules of abstractions will never be absolutely applied by judges. The logical result of a connotative system of abstraction will never be rigorously enforced since the judge in giving the abstraction denotative significance, may qualify the abstraction itself. This qualification of the legal precept--the erosive diminuendo of the precept`s integumentary confines--is often illogicsl under the strict rules of logic, and may necessarily be so since the judge is operating in two spheres at the same time: the sphere of manipulation of verbal symbols and the sphere of concrete matters-of-fact. The process relating the two spheres is often termed legal reasoning or logic. On account of the very nature of this relating process, legal logic is often illogical under the strict rules of logic but may be logical in a common-sense or practical use of the term since the resulting synthesis of the spheres with its manipulative crecendos and diminuendos of the legal abstraction may be a practical one. The relating process may even be an unconscious one on the part of the judge. The confusion and bewilderment of many laymen reading judicial opinions is due to the fact, this writer believes, that they buoyantly endeavor to read the opinion as if strict rules of logic are being applied, and this may inauspiciously not be the case.

Legal rules may be formulated by legal scholars, and even trial and appellate attorneys, as well as by judges. For example, the scholar after reading a myriad of reported judicial decisions by a process of induction from the cases extracts a generalized legal rule. Though the cases may be inconsistent, the scholar is still able to formulate his generalized rule; but after its formulation, his process of induction then becomes one of deduction, and cases inconsisten with the extracted legal rule are then criticised as being wrong according to principle and in law. His chameleon-like change may be illogical, but it is rationalized for the sake of consistency in the law. The trial or appellate attorney, in turn, uses a process of induction to make a case seemingly applicable but contrary to the interest of his client construed as inapplicable and uses a process of deduction to make a case seemingly inapplicable to his client`s situation applicable to his client. In other words, holdings of cases are narrowed and broadened at the same time. This process is legal reasoning. Judges attach considered importance to the extracted legal rule of the scholar and may be swayed by an attorney who is gifted in his narrowing and broadening of prior case law. In any event, legal reasoning is most effective when justice is being furthered and generally ineffective if it is used to effectuate injustice. Many lay persons including professors of polictal science do not realize that precedence in law is creatively constructive and is not restrictive.

Law as a result of abstractions results in the creating of legal man, a fictitious human being whose acts, feelings, desires, motives, and passions are fitted into a schema of legal categories and attributes. These legal features ignore the whole man and the total milieu in which he acts; they consider only the legal attributes of his modus operandi and the legally relevant pecularities of his entourage or encompassment. Since nearly all the abstract arenas of human knowledge and endeavor have devised similar abstract constructs, the creation of legal man should not astonish us. As Freud created his sexual-libido man , as William James his tough- and tender-minded man, as Smith and Ricardo their laissez-faire man, as Aristotle his poltical man, , and as Kant his categorical man with his transcendental knowledge, law has its legal man and his creation is merely a concomitance of the percular human thought-process itself. Yet, after all our efforts at creating our legal man and delimiting the legally relevant field of his actions, we find that courts often ignore their own creation.

We must distinguish between what judges, the molders and expositors of the law, say they do and what they actually do; between the express verbalization of the judicial operating process and the actual process itself; between the supposititiously operating facts and the genuinely operating facts that are the real predication of the judicatorial process. Jidges dissemble that only legal facts--facts of legally operative significance--interpenetrade and permeate the process of judicial determination; other facts, non-legally operative facts, are allegedly ignored. Yet, when inconsistent judicial decisions predicated upon similar legal facts involve considerable dissimilarity in non-legal facts, we often must conclude that the non-legal facts were the actual operative facts and were determinative of the judicatorial result. A wise and bright judge usually has the talent of converting non-legal facts into facts of legal signiffance. Most judges lack this talent, even though their decisions may be proper expressions of justice.

The different outcomes of judicial determinations based upon legally similar facts are often explained by the anticatalytic effect of justice upon the judicial precipitate. It is the aim and purpose of law with its legal norms and sanctions to have identity between just and ethical facts and the legal facts themselves; but because of the unpredictability of the circumstances and the constancy of tranformational changes in the milieu in which the legal norms are intended to apply, complete identity is impossible for the reason that legal facts, which are generalizations of specific qualities of particular facts, are themselves abstractions. As soon as the particular fact is generalized and abstracted, it will have lost its capacity for doing justice in (i>some situations. In other words, due to the very nature of an abstraction--a nature that compels an unethical result under some circumstances, ethical facts are only particular and concrete facts and are never abstracted facts. Thus, judges will always, by one means or another, devise methods for the non-applicability of legal norms and sanctions to some particular situations where the facts otherwise seem appropriate, were it not for intervening justice, to be incorporated as a part of abstracted legal facts to which the norm was originally intended to apply.

The judge has the advantage of many possible avenues by which he msy implement justice to reach the desired outcome: he may simply ignore the appropriate norms that seem applicable and apply other norms, but great judges seldom use this approach; he may adjust the particular facts to a chosen category that is more suitable for the purpose of carry out justice--a category of legal facts other than the one that at first glance would seem appropriate; or, if he be a really wise and creative judge, he may devise on his own initiative a new category of legal facts by a process of abstracting and differentiating. This esoteric and highly complex process of adjudication, which should warn us of the folly of taking the court`s actual verbalizations too seriously, is nearly always unverbalized. Assuming that general legal norms and sanctions are an approximation--perhaps we should say an illusion--of consistency in the law, this esoteric process of adudication is inevitable--the inevitable resultant of the categorizing and abstracting proclivity of the human mind.

A most misunderstood tool of judges, a tool that eventuates in, and allows for, the implementation of justice into the judicial process, is that of legal technicality. The function of the legal techicality is often not one, as many laymen believe, of ignoring morally relevant facts and considering only succinct legal facts; it is rather one that provides an emanicipation from the rigidity of legal norms and sanctions. Many judges use legal technicality to provide for or deny legal liability according to the just merits of the controversy. By being overly technical, judges escape from the seemingly appropriate legal norm or category to a more desirable and covetablw legal norm or category. In England when all felonies were punishable by death, judges often revolted against such harsh treatment for minor felonies and used the device of technucality to let the prisoner go free. The technical pleading requirements for the actions of libel and slander that courts formerly enforced, and still do, were a means developed by judges in the eighteenth century to further freedom of speech and the press.

Political scientists have often animadverted on the use of judicial precedent andstare decisisin Anglo-American law. At the same time they confuse one with the other and use criticism based upon their confusion and misunderstanding. A Supreme Court decision is stare decisisas to circuit appellate and trial courts but it is not stare decicisas to the Supreme Court itself but only a precedent. Precedence is a practice adopted by courts to decide similar cases in a similar way. Thus, the Suptreme Court decision in Roe v. Wray is stare decisisas to courts under the Supreme Court but only a precedent as to future decisions by the Supreme Court on abortion. Courts often use legal technicality to get around the stare decisis or precedenteffect of an unwise decision. But, the idea has never been that unwise decisions, wrong according to justice or in law, must be followed. Otherwise, there would be no way of libertating law from errors of the past. Furthermore, the respect given to judicial precedents has two functions, one that results in the broadening of a wise precedent and the other in the narrowing of an unwise precedent.

Political scientists often treat stare decicisand precedence as restrictive elements in our law, as legal strait-jackets that do not allow for the changing social and economic conditions of society. These critics welcome the progress of administrative law as a deliverance from precedence and >i>stare decicis but these ideas live on. Many administrative boards extend considerable weight to their past decisions. Their proceedings may be less ritualistic and formal than those of regular court, but they function in a very similar manner. If anything, regular courts apply a higher stndard of due process than do regulatory agencies.

Even when not expressly overruled, the legal precedent is binding only for its specific and particular factual situation, and any two factual situations are always distinguishable: History, as to all its subtleties and nuances, never repeats itself. A judge might enlarge the holding of a precedent to include the factual situation in which he is dealing. In order to do this, he might utilize language in the precedent`s opinion that was actually unnecessary for the judicatorial holding--language the lawyer terms dictum or obiter dictum, the latter term designating language not only unnecessary but also far removed from the actual judicial holding. Thus, in the hands of a conscientious judge, legal precedent might be used for liberating as well as for restrictive purposes. Since it is the unimaginaztive judge that feels bound by an unwise precedent, and that a mentally dull and unimaginative judge would have difficulty anyway in implementing justice into his decisions, the respect for legal precedent might help the mediocre judge in his endeavor to reach just decisions, even though occasionally he might follow an unwise but seemingly applicable precedent.

We have seen that legal complexity arising from abstract nature of law is a necessary corollary of adjudication. Being such a corollary, neither the judge nor the lawyer should be unjustly accused of volitionally establishing these complexities: Given the legal process as we know it, the complexities follow from its continual striving to attain justice. This corollary complexity is an affirmation and not a negation of justice.

Yet, the complexities we must fear are those that are derived from the introduction of statutes into the legally operative process. This introduction, an introduction dating back to the near genesis of our legal system, has recently been accelerated to a prodigious compass. The effects of this acceleration, if they are not clarified and simplified, constitute complexities, which are highly precarious and disturbingly pernicious for our way of democratic living.

For a long time now, the position of the legislator has been one of increasing importance in our legal system. On account of the slow process of adjudicating controversies and of judicial timidity, any fundamental and reconstructional modifications of our law must perforce come from him: the legislator must be our point of departure. Yet, in times past, the legislator has often more more phlegmatic than the judge in providing for needed reformation of our law. Legislative procrastimation a rising from the essential nature of the legislator as being primarily a politician--a politician who must account to his constituents for his actions--and from being a legislator only by derivation. Statutes enacted scores of years ago, sometimes even centuries, have created--at least contributed to--many problems for the courts. As a somewhat iconoclastic example, in the seventeenth century the British parliament enacted the Statutes of Frauds providing that certain contracts must be in writing in order to be enforceable or legally recognized by the courts. Without any real comprehension of, and deliberation on, the purposes and aims of the statute--purposes and aims that are, by no means, lucid and clear and unclouded, most American state legislatures enacted verbatim the English Statute of Frauds, even though the statute may no longer be consonant with modern conditions. Since in many situations--if the statute were literally enforced--the result would be undesirable, the courts have felt obleged throughout the centuries to create an esoteric and a highly complex and Egyptian system of juxtaposed rules that, in effect, have allowed the courts to bypass the Statute of Frauds. The legislator, who is capable of even being obstreperous if the need arises, has throughout the centuries remained taciturn.

Thus, much of the complexity of the law has emanated from the struggles of judges with outdated and vague statutes about which the legislator, thinking perennially about re-election and pleasing his constituents, has refused and is continuing to refuse to do anything. Judges and lawyers often suffer the lion`s share of the blame for legal complexity that arises directly from the nonchalance of the mute legislator.

The legislator has neither the time, the desire nor perhaps even the ability to reform the more esoteric branches of the law. His responses are to the urgent stimuli of his office: to his constituents who, when they want laws passed, are clamoring for special privileges or greater rights or security. Many areas of the law that require urgent reform are not of immediate or crucial political, social, and economic significance: reforms needed for the efficient and effective functioning of our democratic society, but reforms that do not excite the passions of the American people.

Law professors, judges, and attornies are not capable to do the research requisitory for reform. The judge role is the resolution of disputes, the professor`s role is in finding out what the law is and disbursing his findings to his students and the law profession in general, and the attorney`s interests and duties are to his client and in utilizing the law as a vehicle that provides justice under the law for his client. Yet, we cannot reform the law until we know what the law is, and unfortunately it has already reached such complexity that the average lawyer, whether a judge, scholar, or practicing attorney lack the time, resources, and knowledge necessary to obtain a full comprehension of the significance of the law in the underlying social and economic realities.

It may seem astonishing to many laymen, but it is a fact--with a few minor exceptions--that in American society there is no group of persons working full time on legal clarification, integration, and simplification. The legislator merely adds amendments to existing statutes and legal codifications: such piecemeal legislative "reform" merely adds complexity to the already complex. There must be established a national and permanent department or institution, preferably not publicly funded but funded by a Bill Gates of this world, with assurances of being freed from special interests, for legal research and reform. The employees of such an institution--they would probably need to be in the thousands to do their tasks adequately--would be full-time, with groups of research workers being assigned to particular areas of the law. The institution whose findings would be presented to both houses of Congress for approval would have to have a fairly large budget, perhaps a hundred million annually. Since many states could not afford comparable institutions to make legislative recommendations to their own legislatures, the national institution could make its services available for a nominal to states requesting assistance.

The sooner the American people realize that the lawyer, the judge, or even the legislator individually is not responsible for the esoteric and highly complex character of the law, the nearer at hand will be the solution to our problem of legal complexity. The increasing complexity--and it is increasing daily--will reach such a stage of development, if that stage has not already been reached, that it will become a shield for arbitrary and capricious bureaucratic actions. The shield will become a tool for the specially privileged, a tool for the negation of the individual and human rights that our country--for more than a sesquicentenary--have provided to us the American people, an ironical tool that denies that which it should affirm. A shield has always two sides: We shall have no way of ascertaining which side is being utilized by our administrators of government. The solution is a permanent and national department of one sort or another dedicated solely to legal research and reform. Not only eternal vigilance but also eternal clarification, integration, and simplificatioin of law is the price of liberty.

©Wilson Ogg