Paper by Mary Ann Glendon
Participants in this Colloquium devoted to ‘Reflections on the Civil Law Tradition in Louisiana’ were advised in their letters of invitation of the fact that Louisiana is currently engaged in a comprehensive revision of its venerable Civil Code. Professor Osakwe also informed us that he hoped our contributions, which deal with several important questions in contemporary civil law, would be of some assistance to those who are engaged in the monumental task of code revision. The terms of the invitation thus permitted me to hope that a paper devoted to an essentially legislative problem, that of finding the optimum balance between fixed rules and discretion, would be considered appropriate for the occasion.
Code revision not only permits, but would seem to require, that drafters examine the current state of the working partnership that exists between courts and legislatures with respect to every piece of legislation. As we all know, in recent generations the nature of this partnership has gradually changed in very significant ways. The problem of the choice between fixed rules and discretion, although rightly characterized by Kenneth Culp Davis as ‘a central problem in our entire legal system,’ is but one of a large complex of issues concerning institutional functions and relationships. The way that we think about the problem today necessarily is affected by the fact that open judicial discretion has come to play an even larger part in our law, whether pursuant to express legislative grants of authority or because the courts simply have assumed wider powers. Many forces in our society further the expansion of discretion without reckoning the cost. For busy legislatures, discretion often appears as a quick fix, an easy compromise, or a way of passing the buck to the courts on a controversial issue. As Max Weber observed, both judges and lawyers tend to welcome discretion because it increases the importance and prestige of their roles. The beginning of the retreat from fixed rules and the resulting drift toward open discretion were noted by Weber early in this century, while the modern advance of these tendencies was the subject of P.S. Atiyah's inaugural lecture at Oxford in 1978.
Because the institutional context of the problem has changed so much since the Louisiana Civil Code first appeared, it seems appropriate, in the process of code revision, to rethink each situation where there is a choice between establishing fixed rules and delegating discretionary power to a judge. In most cases what is required is not actually a choice, but rather a search for the proper mix of discretion and fixed rules under each set of circumstances—the optimum degree of fine-tuning without losing coherence and predictability, of reasonable certainty without losing flexibility. At first it might seem self-evident that a mature legal system should always strive for more refinement and individualization, and that rigidity, as Sir Henry Maine claimed, is the mark of primitive legal orders. But as Richard Epstein has pointed out, the aim of perfect, individualized justice often turns out to be an illusion, while the social cost of trying to achieve it, as well as the cost to individual litigants, is high.
In part this tendency [toward substantive justice] is justified by the belief that this fine tuning is necessary in order to eliminate individual acts of injustice that are not caught by the general rules. But that hope is often delusive. Any refinement in legal rules will increase their error in application as well as their costs of administration; at some point the benefits of precision are overwhelmed by their costs. Perfect justice can only be done at an infinite price—which is another way of saying that it cannot be done at all. A willingness to entertain some tradeoff between simplicity and aspiration is not only the counsel of prudence, it is also a precondition for justice in the broad run of cases.
On the other hand, it is neither possible nor desirable to treat judicial discretion as an inherent evil that should be eliminated or subjected to maximum restraints. It is not possible because such a rigid system would simply drive discretion underground where it could not be examined and controlled. It is not desirable because, as Aristotle pointed out long ago, in the human sciences, such as law, there can be no general rules which are valid for all cases. Furthermore, discretion is valuable not only because it permits general rules to be adapted to individual situations, but because it is an important source of creativity in government and law.
In this Paper, I would like to examine some aspects of this perennial problem of legislative policy and technique that occur in family law and succession law. My emphasis will not be on the advantages or disadvantages of fixed rules and discretion in the abstract, but rather on how such rules operate in the context of particular recurring situations. In the areas chosen for examination here, the choice between fixed rules and discretion not only involves the proper allocation of functions between courts and legislatures, but, more importantly, it determines the balance between official decision-making and private ordering.
In our legal system, property law traditionally has been and even now continues to be characterized by a high degree of strict law, due to what are generally thought to be special needs in that field for stability, predictability, and security of titles. Family law, on the other hand, is characterized by more discretion than any other field of private law. This fact is typically explained by a perceived need to tailor legal resolutions to the unique circumstances of each individual and family. However, when the fields of property and family law interest, as they frequently do, especially when a family is dissolved by divorce or death, difficult questions arise concerning the proper accommodation of the interests served by rules establishing ‘bright lines' and those furthered by individualizing discretion.
My principal object here is to examine critically some recent changes and proposals for change in the traditional mix of fixed rules and discretion in a few specific areas of family and succession law. Most of these innovations and ideas are undoubtedly before the Louisiana State Law Institute. Those calling for new or increased grants of discretion have probably been dressed in appealing attire. Louisiana will be exhorted to follow the common-law states in adopting some of them. But the lengthy and cautious process of code revision provides Louisiana with the opportunity, which many of the common-law states have not had or sought, to weigh carefully the risks and possible benefits of such changes, to investigate who favors them and why. Some of these innovations and proposals have originated outside the United States and are said to function well in their countries of origin. In those cases, it is important to consider the proposed reforms carefully in the light of the special characteristics of the American legal profession, our judiciary, and our rules governing allocation of the expenses of litigation.
About the Author
Mary Ann Glendon. Professor of Law, Harvard Law School. B.A. 1959, J.D. 1961, M.C.L. 1963, University of Chicago Law School.
Citation
60 Tul. L. Rev. 1165 (1986)