CHAPTER II

ANALYSIS OF THE GOVERNMENTAL PROCESS

Almost all of the problems of jurisprudence come down to a fundamental one of rule and discretion, of administration of justice by law and administration of justice by the more or less trained intuition of experienced magistrates.

-POUND.1

Normally the progress of law should be away from discretion toward definite rule.

-FREUND."

Den materiellen Gegensatz zwischen Rechtsvorschrift und Verwaltungsvorschrift kann man also darin fassen, dasz, während erstere ein rechtliches Verhalten fordert, letztere die Technik in der Ausführung einer rechtlich geforderten Handlung bestimmt. Der Gegensatz liegt also in den Begriffen des Rechtlichen und des Technischen.

-AFFOLTER.

L'acte législatif ou réglementaire se connaît à ce qu'il organise; il crée une situation juridique générale, impersonelle, objective; il contient essentiellement une règle de droit, une norme juridique.

Dans tous ces cas, quelles que soient la qualité de l'auteur de l'acte, les formes suivée, le nom donné à l'acte juridique, nous trouvons comme effet juridique voulu la création d'une situation juridique générale, impersonelle, objective. Cela est nécessaire pour qu'il y ait acte législatif au sens matériel, mais cela est suffisant.

-JEZE.

One reason why the ordinance making powers of the President were not earlier recognized as such was the lack in the English speaking world of a scientific jurisprudence such as exists in countries like Germany and France. Terminology in our law was historical rather than scientific; hence it was easy to call the legislative powers of the Chief Magistrate by another name. Even those scholars who through their familiarity with continental juristic distinctions recognized the connection between Presidential rule making and the pouvoir réglementaire of the French and the Verordnungsrecht of the Germans failed to arrive at any commonly

1 An Introduction to the Philosophy of Law, p. 111. "The Substitution of Rule for Discretion in Public Law," in American Political Science Review, November, 1915. Archiv für Öffentliches Recht, Bd. 27, S. 370.

• Principes généraux du droit administratif, p. 9ff.

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accepted term. They referred to the legislative powers of the Executive, and to ordinances without explicitly defining their meaning. President Goodnow wrote of the ordinance power or the power of ordinance; Professor Willoughby of the ordinance making power; Professor Fairlie of administrative legislation." There was lacking, therefore, both fixity in nomenclature and exactness of definition.

In a strictly formal sense there can be no ordinance making powers in American constitutional law. Only executive powers are vested in the President, except at the most where the Constitution itself grants to him participation in legislation." For the present, however, we are not concerned primarily with the nomenclature of the Constitution but with an analysis of the facts of the governmental process. To make clear the precise place of the ordinance making power in that process it is necessary to adopt a number of precisely defined terms after the fashion of analytical jurisprudence. To undertake this task will be to repeat classical distinctions of German jurisprudence; but that will be well worth while if these distinctions can be applied to the phenomena of American government in a manner never before attempted in any complete way. Incidentally, also, emphasis will be laid upon the absolute necessity of building up an acceptable system of technical terminology. Such a system is the indispensable handmaiden to the profitable study of analytical jurisprudence.

Let it be repeated that we shall define ordinance' in terms not of historical connotation but of analytical jurisprudence. Of late this science has come into disfavor with certain selfstyled realists. These men are interested in trying to photograph concrete phenomena, and have little patience with abstract ideas. They fail to realize that the perception of an

Comparative Administrative Law, passim.

• The Constitutional Law of the United States, sec. 781. "Administrative Legislation," in Michigan Law Review, January, 1920.

This is because the opening sentence of Art. 2 of the Constitution describes his powers as executive' powers.

It is significant that the so-called veto power of the President is contained in the article on the legislative department.

apple is a form of abstraction, and that the logic of law and politics is as legitimate a study as the analysis of law and politics in action.

Analytical jurisprudence is the formal science which furnishes logical coherence, consistency, and unity to the provisions of the law. This it does by arranging them under precisely defined categories and developing basic jural concepts out of the elements they have in common.10 The chief of such concepts are: right, or any interest which the law protects; duty, or the correlative obligation to respect a legal right; person, or the subject of right and duty; and thing (including services owed), or the object of right and duty." The method is the simultaneous use of analysis and correlation to discover relative similarities and differences in legal ideas. The results are classifications, generalizations, and definitions. It is the supreme triumph of formal jurisprudence that, carrying to their logical conclusion principles implicit in the law, it has given unity to the whole legal system by evolving the concept of the state as a corporate personality possessed of sovereignty. For sovereignty is the unlimited subjective right of the supreme legal person to set the rights and duties both of itself and of all other legal persons and with reference to all things whatsoever.12 The formula is completed by defining government as the concrete organs, machinery, or agency through which the state formulates and executes its will, and law as the expressed formulations of that will in the creation of rights and duties.13 The state is not only an ordinary legal person with objective rights and duties,14 but it is unique in its possession of abso

10 W. W. Willoughby, "The Study of the Law," in Virginia Law Review, April, 1920, p. 461 ff.

11 Holland, Elements of Jurisprudence, 12th ed. 1916, chap. viii; Gray, The Nature and Sources of the Law, chap. i. See Hohfeld, Fundamental Legal Conceptions.

12 W. W. Willoughby, "The Juristic Conception of the State," in American Political Science Review, May, 1918; Vinogradoff, Introduction to Historical Jurisprudence, p. 88 ff.

13 W. W. Willoughby, The Nature of the State, chaps. vii, viii, ix, and xi.

14 But its objective rights and duties are self-set. "Rechte und Pflichten der Einzelnen empfangen ihre Kraft und Verbindlichkeit aus dem von dem objectiven Rechte festgesetzten Grunde. Der

lute subjective right. As thus conceived the state is an abstract medium of legal thinking rather than a concrete thing. Yet in this respect it is analogous to atom and ether in the physical sciences; 15 and like those concepts its validity must be adjudged by its usefulness.

Starting with these premises analytical jurisprudence undertakes to make generalizations, classifications, and definitions with reference to the functioning of the state through government. In juristic study, as elsewhere, classification is merely the discovery of relative similarities and dissimilarities, by the method of analysis and correlation, and with reference to a defined point of view.16 The classification that follows is not offered as the 'correct' one, therefore, but as one that is not frivolous and is prolific of fairly satisfactory results in the interpretation of the given phenomena. The basis of distinction or point of view is the relation of the process, act, or product in question to the régime of law. By this term is meant the system of modern constitutional government whereby social regulation takes the form of formally set and uniform rules of conduct which are impartially applied to all particular cases which come within the rules.17

This system is typical of the government of modern

Staat findet den Grund seiner Rechte und Pflichten in sich selbst " (Jellinek, Gesetz und Verordnung, p. 196).

15 Pearson, Grammar of Science. See especially the Preface to the edition of 1911.

16 Mill, A System of Logic, book 4, chap. vii. Bastable, Public Finance, pp. 157-158, 163-164, 167, shows how economists dispute over the 'correct' classification of taxes. Political philosophers might profit by his reminder that "the principle of classification is relative to the matter in hand. An arrangement suitable for This is a com

one purpose may be unsuitable for another. monplace to logicians."

17 M. Hauriou states that the reign of law (état de droit) involves two principles: (1) the subordination of particular acts to general rules previously established; and (2) the subordination of the political point of view to that of juridical relationship (Précis de droit administratif et de droit public, huitième édition, 1914, p. 38). Locke speaks of "settled standing rules, indifferent and the same to all parties" (Second Treatise of Civil Government, chap. vii). Typically these 'rules' are embodied in formal enactments.'

states.18

Unwritten legal principles developed under a case system may cover a large field, but are nevertheless historical survivals, exceptions to the modern scheme. Under that

scheme governmental activity is said to be divisible into two and only two distinct phases. These are variously distinguished as the expression and the carrying out of the will of the state; as the formation and the enforcement of the commands of the state; as the creation and the execution by the state of legal rights and duties; and as the enactment and the administration by the state of general rules of conduct. The matter is not so simple as this might indicate, yet we may accept it as the primary distinction from the standpoint of the reign of law.

Legislation is the discretionary determination of the legal rights and duties of private persons generally, or private persons of a reasonably defined class, and the provision of means of enforcing these rights and duties. By discretion is meant the exercise of choice involving not the scientific application to the facts of objective standards but a subjective evaluation of the advisability of alternatives. The régime of law does not eliminate discretion, but substitutes discretion as to a uniform rule for discretion in individual cases. The classical distinction of the Massachusetts constitution is really one between a government of man-made laws and a government of men. Legal means of enforcement is a necessary element in legislation. A rule of conduct which lacks a means of enforcement is not an expression of the will so much as of the mere wish of the state; and such a rule, if not enforceable by legal processes, should not even be graced with the title of a law of imperfect obligation. It should be understood, however, that laws may enact privileges as well as commands,20 and that means of enforcement is to be taken

19

18 Cf. Laband, Deutsches Reichsstaatsrecht (Das Öffentliche Recht der Gegenwart, Band 1), sec. 15.

19 The international lawyers usually insist upon stretching the meaning of the term law so as to include the 'law' of nations; but, clearly, to do so makes the term cover two quite different sorts of rules.

20 The idea of command' was distinctively Austin's; see Brown, The Austinian Theory of Law, chap. i.