Article by Albert Tate, Jr.
In this time of future-shock and law-explosion, judges are required with increasing frequency to fashion new judicial solutions, independent of command or guidance by existing legislative text or jurisprudential precept. The rapidly changing social environment and the innovative legislative responses to it have often necessitated new judicial perceptions and reevaluations of prior precepts and applications in light of the changed and changing social and legislative context. Sweeping modifications of constitutional doctrine over the past two or three decades, even in the area of private law, have sometimes made all pre-existing legislation or legal rules obsolescent for the decision of a given issue. More and more, today's judge is required to improvise, to develop a new judicial solution that cannot be decided on the basis of traditional theories of doctrine or judicial process.
The concern of this paper, then, is the case where, for compelling reason (usually a greatly changed social context or the unconstitutionality of a prior regulation), a court feels obliged to provide a judicial solution that is contrary to, or at least substantially different from the solution provided by statute or judicial interpretation previously thought to be applicable.
The judicial problem in providing a new solution is different in kind, although some might contend only in degree, from that which is confronted by the judge in filling the legislative gap in an unprovided-for case. There, by analogy and deduction from the civil code as a whole, the judge's interpretation provides a rule that is consistent with other code principles. The judicial problem we discuss resembles, but differs from, that presented by the teleological (social-purpose) interpretation of an unchanged legislative text when a different meaning has evolved with a change in social environment. It resembles teleological interpretation in that the data for the new judicial decision (the social environment) are drawn consciously or unconsciously from outside the legislative text; but it differs from the teleological (where the judicial solution is nevertheless based entirely upon the text of the statute) in that a solution outside of, or even contrary to, the text must be provided.
A new judicial solution of this nature raises fundamental questions of propriety and decisional process: Is it truly within the constitutional competence of the judiciary to provide the new legal rule rather than to wait for the legislature to act? What safeguards are there against judicial subjectivity or arbitrariness? Is the new rule to be based entirely upon sources selected by the judge, guided only by his conscience and his sense of social utility and individual fairness, or are some sources (for instance, other legislation) and some techniques (such as analogy or history) alone appropriate? If not, are these latter sources and techniques at least entitled to more weight than other sources (such as model codes or standards, economic or sociological data, or the legal experience in other American or civilian jurisdictions) and other techniques (such as the frank acceptance by the court of legislative responsibility—i.e., acting as a legislator and accepting doctrinal antecedents and analogies as merely persuasive, but not binding, sources)?
About the Author
Albert Tate, Jr. Circuit Judge, United States Court of Appeals for the Fifth Circuit. LL.B 1947, Yale Law School; Certificate in Civil Code Studies 1948, Louisiana State University Law School.
Citation
54 Tul. L. Rev. 877 (1980)