The Americans

by Hugo Münsterberg

Although it seems at first sight as if a legal system, which is composed of previous decisions, would soon become antiquated and petrified, the Anglo-Saxon would say with firm conviction that just such justice is the only one which can be living, because it springs not out of rationalistic preconceptions, but from actual experience. The Anglo-Saxon jurisprudence is full of historical reality and of picturesque individuality. It has grown as organically as language, and is, in the estimation of the Anglo-Saxon, as much superior to a mere code as the ordinary speech of a people, in spite of all its historical inconsistencies, is superior to an artificially constructed speech like Volapük. And he would find many other points of superiority. He would say, for instance, that this is the only system which gives to every man on the judge’s bench the serious sense of his responsibility; for the judge knows that in every case which he decides, he settles not only the fortunes of James and John there present, but he influences for all times the conception of justice of the entire nation. He feels especially that the binding force of previous decisions reassures the public sense of right, and lends a continuity which could never be afforded by the theoretical formulations of an abstract code.

Another factor must be taken into account. A judicial decision which is forgotten as quickly as the voice of the judge who speaks it, can never have so considerable an influence on the public mind as one which itself creates law. In one sense, to be sure, the German judge creates law too; the penal code sets wide limits to the punishment of a criminal, and within these limits the judge assigns a certain penalty. He does in a sense create the right for this particular case; but the characteristic difference is, that in the German Empire no subsequent decision is in the least affected by such preceding decision. The German judge finds justice prescribed for him and he is its servant, while the American makes it and is its master. This gives to the judicial utterance an historical weight and enduring significance, which contribute vastly toward keeping judicial doings in the focus of the public consciousness.

The same is brought about in still another way. Since the decision of the judge is largely dependent on previous cases, the fate of the parties contending may depend on whether they are able to point to previous decisions which are favourable to their side. The layman cannot do this, and it falls to the counsel. In this wise a sphere of action is open to the American lawyer which is incomparably greater than that of any German Anwalt. The former has to concern himself not only with the case in hand, but he has to connect this concrete instance with the whole historic past. Thus the profession of the lawyer comes to have an inner importance which is unknown to the European, and which in many cases necessarily exceeds the importance of the judge, since he is bound to comply with the decisions adduced by the counsels for both sides. The judges are selected from the ranks of lawyers, and are, therefore, brought up in the idea that law is composed of former decisions, and that the decisions of the bench are admirable only so far as they are consistent enough with the earlier ones to force the conviction and respect of the lawyers. Thus barristers and judges are entirely at one, and are together entrusted with the public sense of right, as it has developed itself historically, and as it is day by day added to and perpetuated, so that it shall be a never-failing source of quickening to the conscience of the masses.

In the masses of the people, on the other hand, the natural tendencies are favourable anyhow for developing a lively sense of justice. It is a necessity devolving naturally on the individualistic view of things. The protection of individual rights and the inviolability of the individual person, with all that belongs to it, are the individualist’s most vital concern. Many outward features of American life may seem, indeed, to contradict this, but any one who looks more deeply will see that everywhere the desire for justice is the essential trait of both the individual and the nation; and the public consciousness would rather endure the crassest absurdities and misunderstandings in public affairs than the least conscious violation in the administration of justice. Again and again important trials go to pieces on small technical errors, from which the severe sense of justice of the American is not able to free itself. The public is always willing to endure any hardship rather than to tolerate any maladministration of justice.

On the finest square in Boston stands a large and magnificent hotel, erected by rich capitalists. The building laws provide that structures facing that square shall not exceed a height of ninety feet; but in violation of the law certain cornices and balustrades were added to this building above the ninety-foot line, in order to give an artistic finish to the structure, and still to turn practically every inch allowed by law to account for rentals, which are high in so palatial a building. Every one agreed that this ornamental finish was highly decorative and satisfactory in the æsthetic sense, but that it must, nevertheless, be taken down, because it violated the law by some seven feet. The cornice and balustrades have, therefore, been demolished at great expense, and a handsome structure has been made absolutely hideous—a veritable monstrosity. The best square in the city is disfigured, but every Bostonian looks on this building with gratification. Beautiful architectural detail may indeed have been sacrificed; but the public conscience has won, and it is on this that the nation rests.

It is merely incidental that very much, and indeed much too much, of that which the Germans account matters of justice, is relegated by the American point of view to other tribunals; some, for instance, are held to be political questions, and thus it often appears to the foreigner as if there had been a violation of justice where really there has been only some political abuse. But matters of that sort loom up whenever any nation tries to form an opinion about another. In Germany, indeed, the American seems to see many violations of justice, where the German would find only an historically established social or political abuse.

As we have said, American justice is based on the decisions handed down in earlier cases. But this is, after all, only one of the three sources of law. That form of law-making is also here recognized which in Europe is the only form; the law-making by the majority of the people’s representatives. We have seen how Congress passes every year hundreds of laws. Many of these are indeed special measures, with no universal application; not a few, however, are of very broad application and involve an unlimited number of possible instances. And just as the Congress of the United States, so also can the legislature of each state prescribe general regulations, applicable within the state. Such laws made by the legislature are technically called statutes. These are engrossed in the statute-books of the state, and supersede all opposed decisions which may then exist. The federal judge, like the judge in a special state, is therefore bound to earlier decisions only so far as these are not expressly annulled by statutes.

Here we find one of the main reasons for the extraordinary complexities of the American law; forty-five legislatures are making laws for their several states, and in this way they of course give expression to the diversity of local needs and the varying grades of culture. At the same time, the principle of law, based on earlier decisions, is always combined with the principle of the statute-book. In the cases, both of the laws of Congress and those of the separate states, the judges who first come to apply the statutes in practice, are privileged to make their own interpretation; and here, too, the interpretation handed down in the judge’s decision is valid for all future cases.

In both the federal and state courts a legal action may be carried from the lower to the higher courts, and the decision of the highest tribunal becomes definitely law. The forty-five-fold diversity refers thus not merely to the statutes of the separate states, but also to the interpretations of those statutes which have been given by the upper courts of those states.

The third source of law is the only one that prescribes absolute uniformity for all parts of the country. This is the Constitution of the United States. The Constitution must not be conceived as the creation of Congress; Congress was created by the Constitution. Therefore every provision of the Constitution is a higher law than any bill which Congress can pass, just as the law made by Congress is higher than the decision of any judge. No Congress can modify a clause of the Constitution. The assent of the entire people is necessary for such a revision. Congress can, however, propose an amendment to the Constitution, and a two-thirds majority in the Senate and the House suffice to bring the proposed change before the nation, to be voted on. It has then to be passed on by the forty-five state legislatures, and will become a law with the approval of three-quarters of the states.