American Judge and Judicial Philosopher
Learned Hand, fully Billings Learned Hand
American Judge and Judicial Philosopher
I shall ask no more than that you agree with Dean Inge that even though counting heads is not an ideal way to govern, at least it is better than breaking them.
The aim of law is the maximum gratification of the nervous system of man.
Was not the issue this: whether mankind should be divided between those who command and those who serve; between those who use others at their will and those who must submit; whether the measure of a man's power to shape his own destiny should be the force at his disposal? Our nation was founded upon an answer to those questions, and we have fought this war to make good that answer.
You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say what will be left of those principles; I do not know whether they will serve only as counsels; but this much I think I do know ? that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.
I submit to you that we must press along. Borrowing from Epictetus, let us say to ourselves: "Since we are men, we will play the part of Man."
The apathy of the modern voter is the confusion of the modern reformer.
We accept the verdict of the past until the need for change cries out loudly enough to force upon us a choice between the comforts of further inertia and the irksomeness of action.
It is enough that we set out to mold the motley stuff of life into some form of our own choosing; when we do, the performance is itself the wage.
The art of publicity is a black art; but it has come to stay, and every year adds to its potency.
We believe, and I think properly, that when the men who met in 1787 to make our Constitution they made the best political document ever made; but, remember, they did so very largely because they were great compromisers.
It is of course true that any kind of judicial legislation is objectionable on the score of the limited interests which a Court can represent, yet there are wrongs which in fact legislatures cannot be brought to take an interest in, at least not until the Courts have acted.
The condition of our survival in any but the meagerest existence is our willingness to accommodate ourselves to the conflicting interests of others, to learn to live in a social world.
We like rather to dream of a body of young men as a live thing, as a tree where all the branches are nourished by a single sap, and where each part is meaningless and incomplete except in connection with its fellows. You may lop away the dead branches, you may bend the trunk, you may dig about it and water it; but leave it to assume its own form, do not constrain the peculiar roots, or you will have a crippled, gnarled monster, and no tree.
It is often hard to secure unanimity about the borders of legislative power, but that is much easier than to decide how far a particular adjustment diverges from what the judges deem tolerable. On such issues experience has over and over again shown the difficulty of securing unanimity. This is disastrous because disunity cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends.
The day has clearly gone forever of societies small enough for their members to have personal acquaintance with one another, and to find their station through the appraisal of those who have first-hand knowledge of them. Publicity is an evil substitute and the art of publicity is a black art; but it has come to stay, every year adds to its potency and to the finality of its judgments. The hand that rules the press, the radio, the screen and the far-spread magazine, rules the country whether we like it or not, we must learn to accept it.
We may not stop until we have done our part to fashion a world in which there shall be some share of fellowship; which shall be better than a den of thieves.
It is still in the lap of the gods whether a society can succeed which is based on "civil liberties and human rights" conceived as I have tried to describe them; but of one thing at least we may be sure: the alternatives that have so far appeared have been immeasurably worse.
The history of man has just begun; in the aeons which lie before him lie limitless hope or limitless despair. The choice is his; the present choice is ours. It is worth the trial.
We prate of freedom; we are in deadly fear of life, as much of our own American scene betrays.
It lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it.
The judge's authority depends upon the assumption that he speaks with the mouth of others. That is to say, the momentum of his utterances must be greater than any which his personal reputation and character can command, if it is to do the work assigned to it ? if it is to stand against the passionate resentments arising out of the interests he must frustrate ? for while a judge must discover some composition with the dominant trends of his times, he must preserve his authority by cloaking himself in the majesty of an overshadowing past.
We shall succeed only so far as we continue that most distasteful of all activity, the intolerable labour of thought.
Justice, I think, is the tolerable accommodation of the conflicting interests of society, and I don't believe there is any royal road to attain such accommodations concretely.
The law, being an inherited accumulation, imposes itself on each generation willy-nilly. Any society whose members enter and leave it severally must for very convenience, to say nothing of deeper reasons, proceed by tradition; the neophyte must adopt existing habits and ways of acting, if for no better reason, through inexperience and diffidence. Mere custom will do the rest as he proceeds. And so the rule is canonized, its origins, and therefore its meaning, are ignored. But genuine learning is quite different.
What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it? What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few ? as we have learned to our sorrow. What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.