chapter  III
44 Pages

The Application of Law

WithMarshall L. DeRosa

The nineteenth century abhorred judicial discretion and sought to exclude the administrative element from the domain of judicial justice. The idea that there is no administrative element in the judicial decision of causes and that judicial application of law should be purely mechanical process goes back to Aristotle's Politics. As interpretation on the one side runs into lawmaking and so the judicial function runs into the legislative function, on the other side interpretation runs into application and so the judicial function runs into the administrative or executive. The crude individualization achieved by juries, influenced by emotional appeals, prejudice and the peculiar personal ideas of individual jurors, involves quite as much injustice at one extreme as mechanical application of law by judges at the other extreme. Discretion in the exercise of equitable remedies is an outgrowth of the purely personal intervention in extraordinary cases on grounds that appealed to the conscience of the chancellor in which equity jurisdiction has its origin.