The Law as “Father”

In 1930 in The Law and the Modern Mind Jerome Frank (now a Judge of the United States Circuit Court of Appeals) undertook to apply the principles of psychoanalytic criticism to an elucidation of those processes which have led to the formulation of the Anglo-American system of common law. Pioneers like Sir Frederick Pollock, Dean Pound, Judge Cardozo, and, most especially, Justice Holmes had insisted that there is nothing sacrosanct about the principle of stare decisis and that the adherence of courts and lawyers to the principles laid down in earlier decisions was merely a semi-practical way by which lawyers might prognosticate the future decisions of those courts, provided that the social milieu out of which those decisions had grown had not altered so as to require radical change. What was there about this pragmatic concept which caused old-time lawyers and statesmen to gasp in horror? Why did the conservative teachers and practitioners of Anglo-American law affirm so mightily that their law was never “judge-made”, that the function of lawyer and jurist alike was to search piously in a sort of pseudo-heavenly realm of established law and then to announce ritually what they had found there? For them the court might be wrong in its interpretation; the judge might have been too earth-bound to breathe the rarefied atmosphere of the world of pure legal essence. To intimate, however, that no judge had ever visited that realm, that no lawyer had ever explored it, but that both of them were merely formulating immediately useful principles to guide them in their present dilemma was — and still is — to many British and American students of jurisprudence, pure sacrilege.