Fuller - The Forms and Limits of Adjudication

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The Forms and Limits of AdjudicationAuthor(s): Lon L. Fuller and Kenneth I. WinstonReviewed work(s):Source: Harvard Law Review, Vol. 92, No. 2 (Dec., 1978), pp. 353-409Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/1340368 .

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THE FORMSAND LIMITSOF ADJUDICATIONLon L. Fuller*

Special Editor's NoteThe initial version of The Forms and Limits of Adjudicationwas circulated to the members of the Legal Philosophy DiscussionGroup at Harvard Law School in I957. A revised and expandedversion was prepared in I959 for use in Mr. Fuller's course inJurisprudenceand for discussion at the Round Table on Jurispru-dence at the I959 meeting of the Association of American LawSchools. Further refinements resulted in a third version for class-room use in I96I; I have followed that version here.The editing has consisted principally of minor grammatical cor-rections and changes of punctuation; -the addition of several para-graphs in Part VI, section 2 (see note 22); aindthe identification,where possible, of important references and sources, which are in-serted in brackets. I am deeply grateful to Mrs. Marjorie Fuller,who made it possible for me -toexamine the library and private papersof her late husband.The complete essay has never before been published, but por-tions of it were included in two articles by Mr. Fuller: Adjudicationand the Rule of Law, 54 PROC. AM. SOC'YINT'L L. I (I960) andCollective Bargainingand the Arbitrator, I963 Wis. L. REV. 3. Mr.Fuller also granted permission for the printing pf a substantial partof the essay in AMERICAN COURT SYSTEMS: READINGS IN JUDICIAL

PROCESS AND BEHAVIOR (S. Goldman & A. Sarat eds. I978). ThatMr. Fuller never published the entire essay is due, I believe, to aplan he formulated in I958 or I959 to expand it into a book of thesame title. By I960 the projected volume had become The Prin-ciples of Social Order, an essay in eunomics- that is, in Mr.Fuller's words, "the 'theory of good order and workable arrange-ments." Though Mr. Fuller was subsequently diverted from thisproject, it embodied what one can see retrospectively was the cen-tral preoccupationof his writinzgsduring the i960's and early I970's.

Kenneth I Winston**

I. THE PROBLEMSTOWARDWHICH THIS ESSAY Is ADDRESSEDT HE subjectmatterof this essayis adjudicationn the very

broadest sense. As the term is used here it includes afatherattempting to assume the role of judge in a dispute betweenhis children over possession of a toy. At the other extreme itembraces the most formal and even awesome exercises of ad-judicativepower: a Senate trying the impeachmentof a President,a Supreme Courtsitting in judgment on the powers of the govern-* Late Carter Professor of General Jurisprudence, Harvard Law School. A.B.,Stanford 1I924; J.D., 1I926.** Associate Professor of Philosophy, Wheaton College (Mass.); Lecturer onEducation, Harvard University.

353


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354 HARVARDLAWREVIEW [Vol. 92:353ment of which it is a part, an international tribunal deciding adisputebetweennations,a faculty of law - in formercenturiesundertaking to judge the rival claims of kings and popes, theCongregationof Rites of the Roman Catholic Church hearingthe argumentspro and con in a procedurefor canonization.As the term adjudication is used here its application is notrestrictedto tribunals functioning as part of an established gov-ernment. It includes adjudicativebodies which owe their powersto the consent of the litigants expressed in an agreementof sub-mission, as in labor relations and in international law. It alsoincludes tribunals that assume adjudicative powers without thesanction either of consent or of superior governmental power,the most notable examplebeing the court that sat in the Nurem-berg Trials.The problems that are the concern of this paper are thosesuggested by the two terms of the title, the forms and limits ofadjudication. By speaking of the limits of adjudication I meanto raise such questions as the following: What kinds of socialtasks can properly be assigned to courts and other adjudicativeagencies? What are the lines of division that separate such tasksfrom those that require an exercise of executive power or thatmust be entrusted to planning boards or public corporations?What tacit assumptionsunderlie the conviction that certainprob-lems are inherently unsuited for adjudicative disposition andshould be left to the legislature? More generally, to borrow thetitle of a famous article by Roscoe Pound, what are the limits ofeffective legal action?1I bearing in mind that legislative de-terminationsoften can only become effective if they are of sucha nature that they are suited for judicial interpretationand en-forcement.By the forms of adjudication I refer to the ways in whichadjudicationmay be organized and conducted. For example, inlabor relations and in international law we encounter a hybridform called "tripartitearbitration" in which a "public" or "im-partial" arbitrator sits flanked by arbitrators appointed by theinterestedparties. Such a deviation from the ordinary organiza-tion of adjudicationpresents such questions as: What, if any, areits properuses? What are its peculiarlimits and dangers? Otherdeviational forms present less subtle questions, such as JudgeBridlegoose'sdecisions by a throw of the dice.2 In general thequestions posed for consideration are: What are the permissiblevariations in the forms of adjudication? When has its nature

1 [Pound,The Limits of Effective Legal Action, 3 A.B.A.J. 55 (I9I7).]2 [3 F. RABELAIS, THE HISTORIES OF GARGANTUA AND PANTAGRUEL ch. 39 (J.M.Cohentrans.I955).]


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I978] FORMS AND LIMITS 355been so altered that we are compelled to speak of an "abuse" ora "perversion"of the adjudicativeprocess?

Questions of the permissible forms and the proper limits ofadjudicationhave probablybeen underdiscussion ever since some-thing equivalent to a judicial power first emerged in primitivesociety. In our own history the Supreme Court at an early dateexcluded from its jurisdiction certain issues designated as "po-litical." This exclusion could hardly be said to rest on anyprinciple made explicit in the Constitution; it was groundedrather in a conviction that certain problems by their intrinsicnature fall beyond the proper limits of adjudication, though howthese problems are to be defined remains even today a subjectfor debate. In international aw one of the most significantissueslies in the concept of "justiciability." Similar problems recur inlabor relations,where the properrole of the arbitratorhas alwaysbeena matterin active dispute.It is in the field of administrative law that the issues dealtwith in this paper become most acute. An official charged withallocating television channels wants to know of one applicant"what kind of fellow he really is" and accepts an invitation to aleisurely chat over the luncheon table. The fact of this meetingis disclosed by a crusading legislator. The official is accused ofan abuse of judicial office. Charges and counterchargesfill theair and before the debate is over it appears that nearly everyoneconcerned with the agency's functioning has in some measureviolated the proprieties that attach to a discharge of judicialfunctions. In the midst of this murky argument few are curiousenough to ask whether the tasks assigned to such agencies as theFederalCommunicationsCommission (FCC) and the Civil Aero-nautics Board (CAB) are really suited for adjudicativedetermina-tion, whether, in other words, they fall within the proper limitsof adjudication. No one seems inclined to take up the line ofthought suggested by a remarkof James M. Landis to the effectthat the CAB is charged with what is essentially a managerialjob, unsuited to adjudicative determination or to judicial review.3The purpose of this Article is to offer an analysis that may behelpful in answering questions like those posed in the precedingparagraphs. Now it is apparent that any analysis of this sort,transcendingas it does so many conventional boundaries,will bemeaningless f it does not rest on some concept equivalent to "trueadjudication." For if there is no such thing as "true adjudica-

I [See J.M. Landis, Report on Regulatory Agencies to the President-Elect41-45 (December i960), reprinted in SUBCOMM. ON ADMINISTRATIVE PRACTICEAND PROCEDURE, SENATE COMM. ON THE JUDICIARY, 81ST CONG., 2D SESS., REPORTON REGULATORY AGENCIES TO THE PRESIDENT-ELECT 41-45 (Comm. Print I960).]


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356 HARVARDLAWREVIEW [Vol. 92:353tion," then it becomes impossible to distinguish the uses andabuses of adjudication. Yet it is unfortunatelyalso true that anysuggestion of a notionlike "trueadjudication"goes heavily againstthe grain of modern thought. Today it is a mark of intellectualliberation to realize that there is and can be no such thing as"true science," "true religion,""trueeducation,"or "true adjudi-cation." "It is all a matter of definition." The modern profes-sional university philosopher is particularly allergic to anythingsuggesting the doctrine of essence and takes it as a sure sign ofphilosophic illiteracy when a writer speaks of "the essence ofart" or ''theessenceof democracy."Yet we must examine critically the implications of this re-jection. Does it imply, for example, that international lawyersare talking nonsense when they discuss the question of what kindsof disputes between nations are suited to decision by a tribunal?Are students of labor relations engaged in mere verbal shadow-boxing when they ask how an arbitration should be conductedand what sorts of questions arbitrators are fitted to decide? Dothose engaged in discussions of this sort deceive themselves inbelieving that they are engaged in a rational inquiry? Surely ifadjudicationis subject to a reasonedanalysis in a particularcon-text, there is no a priori reason for supposing that the contextcannot be expanded so that adjudication becomes the object ofa moregeneralanalysis.A.D. Lindsay once observed that it is scarcelypossible to talkintelligently about social institutions without recognizing thatthey exist because and insofar as men pursue certain goals orideals.4 The ideals that keep a social institution alive and func-tioning are never perceived with complete clarity, so that evenif there is no failure of good intentions, the existent institutionwill never be quite what it might have been had it been supportedby a clearer insight into its guiding principles. As Lindsay re-marks, quoting Charley Lomax in Shaw's MIajor Barbara, thereis a certain amount of tosh about the Salvation Army. Surelythere is a good deal of tosh - that is, superfluousrituals, rules ofprocedurewithout clear purpose, needless precautions preservedthroughhabit - in the adjudicative process as we observe it inthis country. Our task is to separate the tosh from the essential.If in undertakingthat task we go counterto a deeply held modernbelief that there is nothing about society or about man's relationsto his fellows that is essential and that all is in effect tosh, thisis a price we shall have to pay to accomplish our objective.Certainlythereis nothingcommendable n a procedurethat avoidshaving to pay that price by keeping the discussionon a speciously

4 [A.D. LINDSAY, I THE MODERN DEMOCRATIC STATE 42 (I943).]


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I978] FORMS AND LIMITS 357ad hoc plane, where its broader implications raise no questionsbecausethey are not perceived.

AccordinglyI shall have to begin our inquiry with an attemptto define "true adjudication,"or adjudication as it might be ifthe ideals that support it were fully realized. In doing so I shallof necessity be describingsomething that never fully exists. Yetit is only with the aid of this nonexistent model that we can passintelligent judgment on the accomplishmentsof adjudication asit actually is. Indeed, it is only with the aid of that model thatwe can distinguish adjudication as an existent institution fromother social institutions and proceduresby which decisions maybe reached.

II. THE Two BASIC FORMSOF SOCIALORDERINGIt is customary to think of adjudicationas a means of settlingdisputes or controversies. This is, of course, its most obviousaspect. The normaloccasion for a resort to adjudication is whenparties are at odds with one another, often to such a degree thata breach of social orderis threatened.More fundamentally,however, adjudicationshould be viewedas a form of social ordering,as a way in which the relations ofmen to one another are governed and regulated. Even in theabsence of any formalizeddoctrineof stare decisis or res judicata,an adjudicativedeterminationwill normally enter in some degree

into the litigants' future relations and into the future relationsof other parties who see themselves as possible litigants beforethe same tribunal. Even if there is no statement by the tribunalof the reasons for its decision, some reason will be perceived orguessed at, and the parties will tend to govern their conductaccordingly.If, then, adjudicationis a form of social ordering, to under-stand it fully we must view it in its relation to other forms ofsocial ordering. It is submitted that there are two basic formsof social ordering:organizationby commonaims and organizationby reciprocity. Without one or the other of these nothing re-semblinga society can exist.These two forms of orderingrepresentthe two basic ways inwhich men may, by coming together, secure an advantage for allparticipants. We may illustrate these forms very simply byassuming, first, that two men share an objective which neithercould achieve without the aid of the other or could not achieveso easily without that aid. A roadway connects two farms witha highway; it becomes blocked by a boulder. Neither farmer isstrong enough to remove the boulder by himself. When the two


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358 HARVARD LAW REVIEW [Vol. 92:353join forces to remove the boulder we have, obviously, organiza-tion or association by commonaims. Now let us suppose that ourtwo farmersare to a considerableextent engagedin "subsistence"farming. One of them has a large crop of onions, the other anabundanceof potatoes. A trade of a portion of their respectivecrops may make each richer; to the potato-raising farmer the"last" potato is not so valuableas the "first"onion, and, of course,a surfeit of onionswill put the other farmerin the reverseposition.Here we have illustrated in its crassest and most obvious formorganizationor associationby reciprocity.

It should be noticed that the conditions which make thesetwo principles of ordering effective are directly opposite to oneanother. To make organizationby reciprocity effective the par-ticipants must want different things; organization by commonaims requiresthat the participantswant the same thing or things.In order to bring these forms of orderinginto closer relationwith adjudication et us now considerbrieflytheir forms andlimits.With respect to reciprocity the form of the relationshipmay runall the way from a tacit perceptionof the advantagesof an asso-ciation, scarcely rising to consciousness, to a highly formalizedwrittencontractor treaty. Two men findpleasurein one another'scompany without realizing that the source of that pleasure liesin the fact that they have complementaryqualities, so that eachneeds what the other has to give. There are probably fewmarriagesin which the relations of the spouses are not to somedegree organized or directed by the principle of reciprocity.There may, however, be an understandable reluctance to giveexplicit recognitionto this principle, and the acknowledgedbasisof the relationship may be something closer to a fiction that allaims are shared aims. This may, indeed, be a beneficentfiction;not all the tosh in humanrelations is harmful. At any rate, what-everreciprocitymay underlie any particularmarriage, t illustratesthe principle of reciprocity in one of its most tacit and informalexpressions. At the otlherend of the scale we might instance acollective labor agreement, every sentence of which was theresult of prolongedand explicit bargaining.Association by common aims also varies over a wide rangein the degreeof its formality. At the one end of the spectrum,wehave the small group, its members all actively sharing and allunderstanding he same objectives. Suchis the case of our farmersuniting to remove--aroadblock. At an intermediatepoint on thescale of formality,we have the voluntary association, the politicalparty, the laborunion,and the benevolentsociety. Here some gen-eral aims will commonly be shared actively by most intelligentmembers; other aims will be promulgated by the leaders which


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I978] FORMS AND LIMITS 359will not in any real sense be shared or even understoodby mostmembers; finally, some aims will be pursued by the leaders in thename of the association that will not even be knownoutsidea smallcircle. In consideringthis constellationof objectives, it shouldnotbe forgottenthat it is, in the long run, the actively shared and atleast vaguely understoodaims that give the association its motivepower. Ascendingfartheralong the scale of increasingformality,we finally encounter the nation or the state. Here we have whatmay be truly called an involuntary association, in the sense thatthere is no readily availableprocedure by which the membermayresign or effectively disclaim his membership. At the same timehe is bound by ruilesenacted to secure certain objectives whetheror not he approvesof these objectives or even understands them.The extent to which he and other citizens actively share theobjectives pursued by their government is something that variesfrom nation to nation and over time within a given nation. Intimes of war the area of actively shared aims normally expandsgreatly. At other times the area of shared aims may shrink tothe point where it embracesmerely the negative object of avoid-ing the disruptions of revolution, of preservingan unsatisfactorystatus quo. It is possible, in extreme cases, that even this im-poverished objective may be shared only by a minority of thecitizens, sufficientlyorganizedto impose their will on the majority.At the same time, it is importantto recall that without some actualsharing of aims affirmativelyentertained, however impoverishedthe aims and however restricted the sharing, no government ispossible. It is for that reason that a government is here con-sideredas a highly formalizedvariety of organizationby commonaims.With respect to the limits or the properprovinces of the twobasic forms of social ordering,what has just been said sufficientlydisposes of organizationby common aims. In the case of organ-ization by reciprocity it is obvious that it properly comes intoplay wherean exchange, or something equivalent to it, may enrichboth parties. Its proper province lies in that area wheredivergenthuman objectives exist. Tihis simple truth is obscured in ourcomplex society, where men and organizations deliberately spe-cialize in order to prepare themselves to enter into relations ofreciprocity, as in the case of a factory that expands its earningsand restricts its market by making a highly specialized componentpart. It may seem silly to say that the sale of a loaf of breadpresents a case of "divergentobjectives"in the sense that I wantthe breadmore than the twenty cents I pay for it, while the grocerwants my twenty cents more than he wants the bread. Yet thetransaction makes no sense in any other terms. Any paradox


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360 HARVARD LAW REVIEW [Vol. 92:353involved is simply the general one that we cannot truly under-stand routinizedand habitual actions in terms of the actual psy-chological states that accompany their performance.The last observation suggests a more general criticism thatmay be directed against the whole analysis being presented here,namely that it grossly overstates the role of rational calculationin human affairs. It forgets that men often act in blind con-formity to custom, in passive acquiescence to authority, and -sometimes at least - in response to inarticulate impulses ofaltruism. But there is no intention here to deny that the springsof humanactions are diverse and often obscure.What is being assumed in this analysis is not that humanbeings at all times behave rationally but that it is the rationalcore of human institutions that is alone capable of keeping thoseinstitutions viable and sound, that can preserve them from de-terioration, that can get them back on course after they havetemporarily lost their bearings. In general what I have calledthe tosh is something that must be gauged and identified on anad hoc basis. It is usually determined by some local context,some particular conjunction of historical forces, some specialaccommodationof opposing interests. If we wish to judge trulyany social institution in its particular setting, we must take thisaccretion of tosh into account. Many well-intentioned reformshave failed because they neglected to do this. But to elevate thetosh to the point of treating it as the basic source of social orderis to abandon any hope of fruitful analysis.I have spoken of the tosh that accumulatesabout institutionsas something that develops out of some local and nonrecurringcombinationof circumstances as a phenomenon, n other words,that follows no general laws. It may be that this is an overstate-ment. It may be possible to predict within given limits that undercertain circumstances, or at a given stage of development, aninstitution will acquire a particular kind of tosh. If this is so,then the thesis of this paper may requiresome modification. Butthe possibility that some such modification may turn out to benecessary is surely not of itself a reason for abandoningall effortto analyze the rational elements that inhere in social organization.In attempting to extract the "rationalcore" that gives direc-tion and constancy to our institutions, we should be on the look-out for a tacit assumptionthat equates rational behavior with thecalculating advancement of self and views all that is noble inhumannature as essentially irrational. This assumption is apt tobecomeparticularlyoperativewhen a comparison s made betweenwhat I have called the two basic forms of social ordering. Theprincipleof reciprocity as symbolized in its crassest form, the


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I978] FORMS AND LIMITS 36Ieconomic trade or "deal" is considered as a manifestation ofhuman nature in its most selfish, calculating mood. Man is seenas being wholly good when he ceases to calculate, when he sur-renders to aims larger than himself which he does not whollyunderstand when, in other words, his relations with his fellowsare wholly dominated by the principle of common or "social"aims.This is, I think, a dangerous view of human nature and ofthe principles that determinea sound organizationof man's rela-tions with his fellows. In the first place, a relation of reciprocitymay be entered for altruisticreasons. For example,two men entera contract for the construction of an orphan asylum. The manfor whomthe asylum is being built is a man of means who desiresto put all of his wealth into a home for orphaned children. Thecontractorenters the same agreementin order to secure funds toput a gifted nephewthrough college. Both view themselves,surelywith some reason, as acting to advance the interests of others,though their relation is one of reciprocity.

Second, no social organization can be good that is grosslyinefficient. At the present time in the communistcountries, par-ticularly in Poland and Russia, there is an active interest in "ra-tionalizing" the pricing of goods and the computationof costs. Itis plain that this requires a type of economic organization thatembracesthe market principle, in which the units of industry or-ganizetheirrelations with one anotherby the principleof reciproc-ity. It may sometimes be convenient to a dictator to have at hiscommandcompliant subjects who have lost the habit of calcula-tion. But if he wishes to expresshis own benevolence (or even hismalevolence) toward society effectively, he has to know what heis doing and that he cannot do without some method of measuringeconomiccosts. This means in turn that at least the higher eche-lons of those concerned with economicactivity must organizetheirrelationsby the principleof reciprocity.Third - and this is the most fundamental point - we mustlook moreclosely to see just what facets of humannature the twobasic formsof orderingdo in fact bringto the fore. It is, of course,true that in a relation of reciprocity each party is expected tostand up for himself; indeed, this is required f the full advantagesof this form of associationare to be obtained. At the same time,it must be realized that this relationship requires of each partythat he understand as fully as he possibly can what the other

party is like and what his wants are. In an organizationdomi-nated by the principle of common ends, nothing is easier thanto slip into the assumption that the other fellow wants what wewant, or that he will want the same thing when his perception


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362 HARVARD LAW REVIEW [Vol. 92:353has developed to the level of our own. There is no automaticcorrectivefor this kind of error,which is probably as common asany that men are subject to.In a relation of reciprocity, however, we must know, if we areto obtain what we want, what the other fellow wants. It is truethat, like Tom Sawyerwhen he got himself out of a fence-paintingjob, we may persuade the other fellow he wants something thathe really does not, or like the modern advertiserwe may elevatethis persuasion to the level of a skillful manipulation of massopinion. But even in this manipulationthere is latent a certainregardfor humandignity; we at least try to make the fellow overso that he will want what we have to give him. We do not merelythrust something on him and say, "Here it is." The now-re-pudiated Soviet legal philosopher Pashukanis discerned the quint-essence of capitalist morality in the ethical principle proclaimedby Kant, that we should treat our fellow man as an end-in-himselfand never as a mere means. Pashukanisargued that it is only ina society dominated by the. principle of exchange that such aprecept could be attractiveor even workable.5In a society shapedby the principle of common aims all men would be means forsociety and for one another; no man would be treated as an end-in-himself. In terms of Pashukanis' analysis the relationship ofreciprocitymay in fact be defined as one in which each participantis treated by the other as an end-in-himself.In judging the relative faults and virtues of the two basicformsof social ordering for each has both faults and virtues-it would be well to recall Jeremy Bentham's wry comment that ifEve's every act had been for Adam, and his for her, they wouldboth have starved to death.6 It should also be recalled that thetwo modern forms of totalitarianismhave shared a contempt for"trading morality"and have pretendedto direct every individualactivity "for the good of all." Finally, it may be well to point outthat the principleof reciprocityis implicit in the "goldenrule."

These remarksmay seem somethingof a digression from ad-judication. But since the analysis presentedin this paper discernsan intimate connection between adjudication and what I havecalled the two basic forms of social ordering, it was thought wiseto forestall at the outset at least the more obvious misunderstand-ings that may be engendered n the course of the discussion. It isnow time, however, to place adjudication in its proper relation tothe two basic forms of social organization.I [See Fuller, Pashukanis and Vyshinsky: A Study in the Development ofMarxian Legal Theory, 47 MICH. L. REV. II57 (I949).]I [See L. STEPHEN, I THE ENGLISH UTILITARIANS I2 (I900).]


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I978] FORMSAND LIMITS 363III. ADJUDICATION AS A FORM OF SOCIAL ORDERING

In discussing reciprocity and organizationby common aims,I pointed out that these two forms of social ordering presentthemselvesalong a scale of varying formal explicitness. To someextent the same thing is true of adjudication. We talk, for ex-ample, of "taking our case to the forum of public opinion." Ortwo men may arguein the presenceof a third with a kind of tacithope that he will decide which is right, but without any explicitsubmission of their dispute to his arbitrament.On the very informallevel, however, forms of social orderingare too mixed and ambiguousto make comparisonsfruitful. It isonly when a particular form of ordering explicitly controls arelationship that it can be set off clearly against alternative formsof ordering. For this reason, therefore, I am here employingcontractto representreciprocityin its formal and explicit expres-sion. I shall take elections as the most familiar formalizationoforganizationby common aims.Adjudication,contract, and elections are three ways of reach-ing decisions, of settling disputes, of defining men's relations toone another. Now I submit that the characteristic feature of eachof these forms of social orderinglies in the manner in which theaffectedparty participates in the decision reached. This may bepresentedgraphicallyas follows:Form of Social Ordering Mode of Participation bythe AffectedParty

Contract NegotiationElections VotingAdjudication Presentation of proofsand reasonedarguments

It is characteristic of these three ways of ordering men'srelationsthat though they are subject to variation they presentthemselves in different"forms" each contains certain intrinsicdemandsthat must be met if it is to function properly. We maydistinguish roughly between "optimumconditions," which wouldlift a particularformof order to its highestexpression,and "essen-tial conditions,"without which the form of order ceases to func-tion in any significantsense at all.With respect to the principle of contract an analysis of op-timum and essential conditions would be exceedingly complexand would require an analysis of the requirements of a marketeconomy, of the peculiar qualities of bargaining in situations of


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364 HARVARDLAWREVIEW [Vol. 92:353oligopoly, etc. We can observe, however, that a regime of con-tract presupposes the absence of certain kinds of coercion; acontract signed at the point of a gun is hardly in any significantsense a contract at all. However, it will be simpler if we confineour attention here to a comparisonof elections with adjudication.Elections present themselves in many forms, varying from thetown meeting to the "ja-nein"plebiscite. Voting can be organizedin many ways: simple majority vote, PR [proportional repre-sentation], STV [single transferable voting], and various com-plicatedmixedforms.7 At the same time all of these expressionsofpolitical democracyhave in common that they afford the personaffected by the decision which emerges a peculiar form of par-ticipation in that decision, namely, some form of voting. Theoptimum conditions that would give fullest meaning to this par-ticipation include an intelligent and fully informed electorate, anactive interest by the electorate in the issues, candorin discussingthose issues by those participatingin public debate- conditions,it is needless to say, that are scarcely ever realizedin practice. Onthe other hand, there are certain essential conditions withoutwhich the participationof the voter loses its meaning altogether.These would include that the votes be honestly counted, thatthe ballot boxes not be "stuffed,"that certain types of intimida-tion be absent, etc.Now much of this paperwill be concernedin carryingthroughwith a similiar analysis of the optimum and essential conditionsfor the functioning of adjudication. This whole analysis willderive from one simple proposition, namely, that the distinguish-ing characteristicof adjudication lies in the fact that it conferson the affectedparty a peculiar form of participation in the de-cision, that of presenting proofs and reasoned arguments for adecision in his favor. Whateverheightens the significanceof thisparticipation lifts adjudication toward its optimum expression.Whateverdestroys the meaningof that participationdestroys theintegrity of adjudication itself. Thus, participation through rea-soned argument loses its meaning if the arbiter of the disputeis inaccessible to reason because he is insane, has been bribed, oris hopelessly prejudiced. The purpose of this paper is to traceout the somewhat less obvious implications of the propositionthat the distinguishing feature of adjudication lies in the modeof participation which it accords to the party affected by thedecision.But first it will be necessary to deal with certain objectionsthat may be raised against my starting point, namely against the

I [See W.J.M. MACKENZIE, FREE ELECTIONS: AN ELEMENTARY TEXTBOOK(I958).]


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I978] FORMS AND LIMITS 365proposition that the "essence"of adjudicationlies in the mode ofparticipation it accords to the affectedparty.

IV. ADJUDICATIONAND RATIONALITYIt may be said that the essence of adjudicationlies not in themanner in which the affected party participates in the decisionbut in the office of judge. If there is a judge and a chance toappearbefore him, it is a matter of indifferencewhether the liti-gant chooses to present proofs or reasonedarguments. He may,

if he sees fit, offerno argumentat all, or pitch his appeal entirelyon an emotional level, or even indicate his willingness that thejudge decide the case by a throw of the dice. It might seem, then,that our analysis should take as its point of departure the officeof judge. From this officecertain requirementsmight be deduced,for example,that of impartiality,since a judge to be "truly" suchmust be impartial. Then, as the next step, if he is to be impartialhe must be willing to hear both sides, etc.The trouble with this is that there are people who are called"judges"holding official positions and expected to be impartialwho nevertheless do not participate in an adjudication in anysense directly relevant to the subject of this paper. Judges at anagricultural fair or an art exhibition may serve as examples.Again, a baseball umpire, though he is not called a judge, is ex-pected to make impartialrulings. What distinguishes these func-tionaries is not that they do not hold governmental office, for theduties of a judge at a livestock fair would scarcely be changedif he were an official of the Department of Agriculture. Whatdistinguishes them from courts, administrative tribunals, andboardsof arbitration s that their decisions are not reached withinan institutional frameworkthat is intended to assure to the dis-putantsan opportunity for the presentationof proofs and reasonedarguments.The judge of livestock may or may not permit such a

presentation; it is not an integral part of his office to permit andto attendto it.If, on the other hand, we start with the notion of a process ofdecision in which the affectedparty's participationconsists in anopportunityto present proofs and reasonedarguments,the officeof judge or arbitrator and the requirement of impartiality followas necessary implications. The logicianFrege once took the expres-sion "I accuse" as exemplifyingthe complex implicationscontainedin the most ordinary language. We may say that the verb "toaccuse"presupposes five elements: (i) an accuser, (2) a personaccused, (3) a person before whom the accusation is presented,(4) an act charged against the accused, and (5) a principle by


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366 HARVARD LAW REVIEW [Vol. 92:353which the act may be condemned.8The similarity to the analysishere presented is apparent; the fifth element, it should be noted,corresponds to the notion of a reasoned argument. Of course,Frege was concernedmerely to spell out the implicationscontainedin a phrase,not, as we are here, with the problemof creatingandmaintaininga social institution that will give effect to those impli-cations.It may be objected at this point that "reasonedargument"is,after all, not a monopoly of forensic proceedings. A politicalspeech may take the form of a reasonedappeal to the electorate;to be sure, it often takes other forms, but the same thing may besaid of speeches in court. This objection fails to take account ofa conception that underlies the whole analysis being presentedhere, the conception, namely, of a form of participatingin a deci-sion that is institutionallydefined and assured.When I am entering a contract with another person I maypresent proofs and arguments to him, but there is generally noformal assurance that I will be given this opportunityor that hewill listen to my arguments if I make them. (Perhaps the onlyexception to this generalization lies in the somewhat anomalouslegal obligation "to bargain in good faith" in labor relations.)During an election I may actively campaign for one side and maypresentwhat I considerto be "reasonedarguments"to the electo-rate. If I am an effective campaignerthis participation in thedecision ultimately reachedmay greatly outweigh in importancethe casting of my own single vote. At the same time, it is only thelatter form of participation that is the subject of an affirmativeinstitutionalguarantee. The protectionaccorded my right to pre-sent arguments to the electorate is almost entirely indirect andnegative. The way will be held clear for me, but I shall have topave it myself. Even if I am given an affirmative right (for ex-ample, under the "equal time" rule of the FCC) I am given noformalassurancethat anyone will listen to my appeal. The voterwho goes to sleep before his television set is surely not subject tothe same condemnationas the judge who sleeps through the argu-ments of counsel.Adjudication is, then, a device which gives formal and institu-tional expression to the influence of reasoned argument in humanaffairs. As such it assumes a burden of rationality not borne byany other formof social ordering. A decision which is the productof reasonedargument must be prepareditself to meet the test of

[This analysis iS taken from an anonymous review of TRANsLATIoNs FROM THEPHILOSOPHICAL WRITINGS OF GOTTOB FREGE (P. Geach & M. Black eds. I952) in1952 THETIMES (London) LITERARYSUPPLEMENT553, col. I. The reviewer offersthe analysis to illustrate the notion of "functional expression." The fifth elementhas been added by Mr. Fuller.]


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I978] FORMSAND LIMITS 367reason. We demandof an adjudicativedecision a kind of ration-ality we do not expect of the results of contract or of voting. Thishigher responsibility toward rationality is at once the strengthand the weakness of adjudicationas a form of social ordering.In entering contracts, men are of course in some measureguided by rational considerations. The subsistence farmer whohas a surfeit of potatoes and only a handful of onions acts reason-ably when he trades potatoes for onions. But there is no test ofrationalitythat can be appliedto the resultof the trade consideredin abstractionfrom the interests of the parties. Indeed, the tradeof potatoes for onions,which is a rationalact by one trader,mightbe considered rrational f indulgedin by his oppositenumber,whohas a storehouse full of onions and only a bushel of potatoes. Ifwe asked one party to the contract, "Can you defend that con-tract?" he might answer, "Why, yes. It was good for me and itwas good for him." If we then said, "But that is not what wemeant. We meant, can you defend it on general grounds?" hemightwell replythat he did not know what we were talking about.Yet this is preciselythe kind of question we normallydirect towardthe decisionof a judgeor arbitrator. The results that emergefromadjudicationare subject, then, to a standard of rationality that isdifferentfrom that imposed on the resultsof an exchange.I believe that the same observationholds true when adjudica-tion is compared with elections. The key to the difference liesagain in the mode in which the affected party participates in adecision. If, as in adjudication, the only mode of participationconsists in the opportunity to present proofs and arguments, thepurposeof this participationis frustrated,and the whole proceed-ing becomes a farce, should the decision that emerges make nopretense whateverto rationality. The same cannot be said of themode of participation called voting. We may assume that thepreferencesof voters are ultimately emotional, inarticulate, andnot subject to rationaldefense. At the same time there is a needfor social order,and it may be assumed that this need is best metwhen order rests on the broadest possible base of popular sup-port. Onthis ground,a negative defense of democracyis possible;the will of the majority controls, not because it is right, butwell, because it is the will of the majority. This is surely animpoverishedconception of democracy, but it expresses at leastone ingredientof any philosophy of democracy, and it suggestsa reason why we demand of adjudication a kind of rationalitythat we do not expectof elections.This problem can be approachedsomewhat obliquely from adifferentdirection by asking what is impliedby "a right"or by "aclaim of right." If I say to someone, "Give me that!" I do not


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368 HARVARDLAW REVIEW [Vol. 92:353necessarilyassert a right. I may be begging for an act of charity,or I may be threatening to take by force something to which Iadmittedlyhave no right. On the other hand, if I say, "Give thatto me, I have a right to it," I necessarily assert the existence ofsome principle or standard by which my "right" can be tested.To be sure, this principleor standard may not have antedatedmy claim. If one boy says to another, "Give me that catcher'smitt," and answers the question, "Why?" by saying, "Because Iam the best catcher on the team,"he asserts a principleby whichthe equipmentof the team ought to be apportionedin accordancewith the ability to use it. He necessarily implies that, were therespective abilities of the two boys reversed, the mitt shouldremain where it is. But he does not, by necessary implication,assert that the principle by which he supports his claim is anestablished one. Indeed, up to the time this claim is made, theright to be catcher might depend not on ability but on ownershipof the catcher's mitt. In that event the claim based upon thenew principle of ability might, in effect, propose a revolution inthe organizationof the team. At the same time, this claim doesnecessarily imply a principle which can give meaning to thedemand that like cases be given like treatment.Now if we ask ourselves what kinds of questions are com-monly decided by judges and arbitrators, the answer may wellbe, "Claimsof right." Indeed, in the older literature (includingnotably John Chipman Gray's The Nature and Sources of theLaw) courts were often distinguished from administrative orexecutive agencies on the groundthat it is the function of courtsto "declare rights."' If, then, we seek to define "the limits ofadjudication," a tempting answer would be that the properprovince of courts is limited to cases where rights are asserted.On reflection we might enlarge this to include cases where faultor guilt is charged (broadly, "the trial of accusations"), since inmany cases it is artificial to treat the accuser (who may be thedistrictattorney) as claiminga right. Though it is not particularlyartificial to view the lawbreaker as violating "a right" of thestate, to say that when the state indicts the lawbreaker it isclaiming a remedial "right" against him does seem to reflect amisguided impulse toward forcing a symmetry between civil andcriminal remedies. To avoid any such manipulations of naturalmodes of thought, let us then amend the suggested criterion toread as follows: The proper province of adjudication is to makean authoritative determinationof questions raised by claims ofrightand accusations of guilt.

I [J.C. GRAY, HE NATUREANDSOURCESF THE LAW I5 (2d ed. 1921).]


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I978] FORMSAND LIMITS 369Is this a significantway of describing"the limits of adjudica-tion"? I do not think so. In fact, what purports here to be a

distinct assertion is merely an implicationof the fact that adjudi-cation is a form of decision that defines the affected party'sparticipationas that of offeringproofs and reasoned arguments.It is not so much that adjudicatorsdecide only issues presentedby claims of right or accusations. The point is rather that what-ever they decide, or whatever is submitted to them for decision,tends to be converted into a claim of right or an accusation offault or guilt. This conversion is effected by the institutionalframework within which both the litigant and the adjudicatorfunction.Let me spell out rather painstakingly the steps of an argu-ment that will show why this should be so. (i) Adjudication isa process of decision that grants to the affected party a form ofparticipation that consists in the opportunity to present proofsand reasonedarguments. (2) The litigant must therefore, if hisparticipation is to be meaningful, assert some principle or prin-ciples by which his argumentsare sound and his proofs relevant.(3) A naked demand is distinguished from a claim of right bythe fact that the latter is a demand supported by a principle;likewise, a mere expression of displeasure or resentment is dis-tinguished from an accusation by the fact that the latter restsuponsomeprinciple. Hence, (4) issues triedbeforean adjudicatortend to become claims of right or accusationsof fault.We may see this process of conversion in the case of anemployee who desires an increase in pay. If he asks his boss fora raise, he may, of course, claim "a right" to the raise. He mayargue the fairness of the principle of equal treatment and callattention to the fact that Joe, who is no better than he, recentlygot a raise. But he does not have to rest his plea on any groundof this sort. He may merely beg for generosity, urging the needsof his family. Or he may propose an exchange, offering to takeon extra duties if he gets the raise. If, however, he takes his caseto an arbitratorhe cannot, explicitly at least, support his case byan appeal to charity or by proposing a bargain. He will have tosupport his demand by a principle of some kind, and a demandsupportedby principle is the same thing as a claim of right. So,whenhe asks his boss for a raise, he may or may not make a claimof right; when he presents his demand to an arbitratorhe mustmake a claim of right. (I do not overlook the possibility of thearbitrator'sproposing to the parties a "deal" by which the em-ployee would get the raise but take on extra duties. But it isobvious that in such a case the arbitrator steps out of the role of


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I978] FORMSAND LIMITS 37Isocial orderingin those areas where the effectiveness of humanassociationwouldbe destroyedif it were organizedabout formallydefined "rights"and "wrongs." Courts have, for example, ratherregularly refused to enforce agreements between husband andwife affecting the internal organizationof family life. There areother and wider areas where the intrusion of "the machinery ofthe law" is equally inappropriate. An adjudicative board mightwell undertake to allocate one thousand tons of coal among threeclaimants; it could hardly conduct even the simplest coal-miningenterprise by the forms of adjudication. Wherever successfulhuman association depends upon spontaneous and informal col-laboration,shifting its forms with the task at hand, there adjudi-cation is out of place except as it may declare certain groundrulesapplicableto a wide variety of activities.These are vague and perhaps trite observations. I shallattempt to bring them into sharper focus in a later part of thispaper, particularly in a discussion of the relative incapacity ofadjudication to solve "polycentric" problems. Meanwhile, thepoint I should like to stress is that the incapacity of a given areaof humanactivity to endurea pervasivedelimitation of rights andwrongs is also a measure of its incapacity to respond to a tooexigent rationality, a rationality that demands an immediate andexplicit reason for every step taken. Back of both of these in-capacities lies the fundamental truth that certain kinds of humanrelations are not appropriate raw material for a process of de-cision that is institutionally committed to acting on the basis ofreasonedargument.(It may be well here to deal parenthetically with one or twosmall points capable of giving difficulty. When we speak ofadjudicationas implying an institutional guarantee of participa-tion in the decision by presenting proofs and arguments, we donot imply that the litigant must always avail himself of his rightto this participation. The facts may be stipulated by agreementof the parties, thus dispensing with the necessity for proof incourt. Again, one or both parties may waive argument. There isno real point of difficulty here, any more than there is in the factthat an election affordsan opportunity for participation of whichmany qualified to vote do not avail themselves. A slightly moresticky point is this: there are exceptional instances of decisionsbetween disputants where no argument is ever contemplated be-cause it is superfluous. An example is where a dispute about"conformity to sample" arises between a seller and a buyer oftextiles and the parties agree to abide by the decision of alaboratory. Whether such a process of decision should be called


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372 HARVARD LAW REVIEW [Vol. 92:353"adjudication"is not a matter of real importance because itssimplicity excludes the problems that are the subject of analysisin this essay.)

V. ADJUDICATION AND THE RULE OF LAWSo far a point of crucialimportanceand difficultyhas not beenreached in this discussion. It has been repeatedly asserted thatadjudication s institutionally committedto a "reasoned"decision,to a decision based on "principle." But what is the source of the"principle" on the basis of which the case is to be argued anddecided? Where do the parties and the adjudicator get their re-spective "reasons"?Recent discussions of "the rule of law" reveal or I shouldperhaps say, largely conceal- a very fundamental differenceofopinion on this question of the source of principle. There is atpresent a very active movement aimed at extending the rule of

law to international relations and at assisting peoples who havenever known stable and constitutional government to achieveinternally a condition known as the rule of law. Much of thediscussion engenderedis on an inspirationaland rhetorical levelthat does not permit underlyingdifficultiesto come to the surface.When, however, those difficulties are candidly faced a seriousissue emerges that may be somewhattoo simply stated as: Whichcomes first, courts or rules?All are agreed that courts are essential to "the rule of law."The object of the rule of law is to substitute for violence peace-ful ways of settling disputes. Obviously peace cannot be assuredsimply by treaties, agreements, and legislative enactment. Theremust be some agency capable of determining the rights of partiesin concretesituations of controversy. Beyond this point, however,disagreementbegins.On the one side the advocates of the view "first courts, then

rules" see adjudicationas the primary source of peaceful order.The essence of the rule of law consists in being assured of yourday in court. Courts can be counted on to make a reasoned dis-position of controversies,either by the application of statutes ortreaties, or in the absence of these sources, by the developmentof rules appropriateto the cases before them and derived fromgeneral principles of fairness and equity.Critics of this view assert that it does a disservice to a greatand valid ideal. It dodges the whole issue of "justiciability"andassumes there can be no problem or controversy that lies beyondthe limits of adjudication. It substitutes for critical judgment anaive trust in good intentions. It forgets that you cannot be fair


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I978] FORMS AND LIMITS 373in a moral and legal vacuum. It ignores the fact that adjudicationcannot function without some standard of decision,either imposedby superior authority or willingly accepted by the disputants.Without some standard of decision the requirement hat the judgebe impartial becomes meaningless. Similarly, without such astandard the litigants' participation through reasoned argumentloses its meaning. Communicationand persuasion presupposesome sharedcontext of principle.Furthermore, say these critics, it is futile to assume that thevoid can be filled by contracts and treaties. Where the words ofan agreementhave a plain and obvious meaning, public opinionwill ordinarily suipplya sufficient sanction to ensure its perform-ance. The necessity of a resort to adjudication will arise pre-cisely in those cases where the proper meaning of the contractis in dispute. Internationaltreaties are often filled with purpose-ful ambiguities; some issues are simply too touchy to be resolvedby agreement. When a dispute later develops around such issues,the agreementoffers no guidance. To demand of a court that itsimply resolve such issues "fairly" is to ask the court to decidesomething about which the parties themselves could not agreeand for the determinationof which no standardexists. Further-more, the most troublesome issues arising out of treaties ofteninvolve cases where the original situation, on the basis of whichthe parties contracted,has been overtakenby events, so that thefactual underpinningsof the agreement have been removed. Insuch a case, the court either has to declare the agreement nolonger in force, thus leaving itself and the parties without anystandard of decision, or it has to engage in a drastic revision ofthe contract, again without the guidance of any clear standard.To all this argument the opposing party enters a rejoinderalong these lines: The views just expressed are founded on a grossignorance of history. The two great systems of law that dominatethe worldtoday - the commonlaw and the civil law - took theirorigins in a case-by-case evolution of doctrine. Even today whendevelopmentsoccur in the common law it is usually only at theend of a series of cases that the governingprinciplebecomes clear.In the civil law countries the codes from which courts purportto derive theirprinciplesoften provide little beyond a vocabularyfor stating legal results. They are filled with clauses referring to"good faith," "equity," "fair practice," and the like -standardsthat any court could apply without the aid of a code. One of thebest of modern codes, the Swiss Code of Obligations, lays downvery few rules and contents itself largely with charting the rangeof judicial discretion and with setting forth what might be calledchecklists for the judge to consult to make certain that he has


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374 HARVARD LAW REVIEW [Vol. 92:353overlooked no factor properly bearing on the exercise of hisdiscretion.

To this argumentthe final reply would probably run somewhatas follows: The views just expressed themselves betray a deepignorance of history. The developments related have occurredin situations where there was already outside the law a strongsense of community, where there were generally shared concep-tions of right and wrong that could graduallybe crystallized intolegal doctrine. In a community of traders, apparently vaguephrases like "fair practice" have a definiteness of meaning thatthey cannot have in international relations or among people justemerging from primitive feudalism. Where legal rules haveevolved out of the process of adjudication,law has in effect beenbuilt on community. Uncritical proponentsof extending the ruleof law proposeto build communityon law. It cannot be done.A less compromising reply would be given by Friedrich A.Hayek, a true stalwart of the "law first, then courts" school ofthought. In his lectures The Political Ideal of the Rule of Law,he declares his conviction that the case-by-case methods of thecommon law are inconsistent with the ideal of the rule of law."The startling conclusion seems to follow that precisely those na-tions that have most often been held up as ideals of a peacefuland just internal order themselves violate the rule of law by theirsystems of adjudication. Hayek further connects the decline ofthe liberalstate in Europeand the rise of totalitarianphilosophieswith the increasinguse of vague provisionsin codes, such as thoserequiring "good faith" and "fair practice" without further speci-fication of the kind of behavior intended.'2Now it seems to me clear that, if we exclude such extremeviews as that of Hayek, there is much to be said for both sides.We need, I believe, to keep two importanttruths before us: (i)It is sometimes possible to initiate adjudication effectively withoutdefinite rules; in this situation a case-by-case evolution of legalprinciple does often take place. (2) This evolution does notalways occur, and we need to analyze more clearly than we gen-erally have what conditions foster or hinder it.A good many of our regulatory agencies were initiated in thehope that as knowledge was gained case by case a body ofprinciple would emerge that would be understandableby all con-cerned and that would bring their adjudicative decisions withinthe rule of law. In somecases this hope has been at least partiallyvindicated; in others it has been almost completely disappointed.Here is a pool of experience that has been inadequately tapped.

1 [F.A. HAYEK, THE POLITICALDEALOF THE RULE OF LAW I9 (I955).]1 [Id. at 35, 39-42.]


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1978] FORMSAND LIMITS 375It may be suggested, parenthetically, that the often remarkedtendency of regulatory agencies to identify themselves with theinterests of the industrythey regulatemay proceed from a deepercause than mere familiarrubbingof elbows or a desire on the partof the regulator to curry favor with an industry that may someday put him on its payroll. I suggest that the cause may lie ina desire to escape the frustration of trying to act as a judge in asituation affording no standard of decision. To escape from amoral vacuum one has to identify oneself with something, andthe most obvious object of identification lies in the regulatedindustry.It will be useful at this point to consider a kind of paradigminstance of a case-by-casegrowth of legal doctrine. The model orexampleI am about to present has been borrowedfroman earlierarticle of mine.'3 The cases are of course schematic and hypo-thetical. They are given in the order of their assumed chro-nology. The parties in each case are differentpersons, but to fa-cilitate comparisons the symbols used to designate the partieswill be the same throughout and will indicate the role playedby the particular party; thus in all five cases 0 will designatethe original ownerof the horse which came by theft or fraud intothe handsof T.Case No. i. T steals O's horse and sells it to G, who pays fullvalue for it and has no reason to know it had been stolen from0. 0 bringssuit against G to recoverthe horse. Held, for 0. Oneof the deterrentsto thievery is the difficulty of disposing of stolengoods. If a purchaserlike G were able to take goods free of theclaimof the trueowner,a market for stolengoodswould be createdand thus an incentive to theft. In any event, it was impossiblefor T, a thief who had no rightful title to the horse, to pass anytitle to G; he who has nothing can give nothing.CaseNo. 2. T buys a horse from0 giving as paymenta forgednote purportingto be that of X. T knew that the note was forged.After deliveringthe horse to T, 0 discovers that he has been de-frauded. He brings suit against T to recover the horse. It isarguedon behalf of T that 0 deliveredthe horse to him with theintent to confer title; the horse is now T's and O's only remedyis to sue for the price. Held, for 0. The passage of title wasvitiated by the fraud of T; title throughoutremainedin 0.Case No. 3. The case is similar to Case No. 2, except thatafter receivingpossession of the horse, T sold it to G, who knewT had bought it from 0 but had no reason to know that T hadworked any fraud on 0. 0 brings suit against G to recover the

13 [Fuller, A Rejoinder to Professor Nagel,] 3 NAT. L.F. 83, 96-98 (I958).


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376 HARVARDLAW REVIEW [Vol. 92:353horse. It is argued on behalf of 0 that title remainedin him inaccordance with the principle laid down in Case No. 2. SinceT had no title, he could pass none to G. Held, for G. It wouldbe anintolerable burden on commerce if purchasersof property werecompelled to scrutinize the details of a transactionby which theformer ownervoluntarilydeliveredit into the hands of the personnow offeringit for sale. Fraud takes many and subtle forms; ifthe victim could not recognize it, it is unreasonableto ask of astranger to the transaction that he ascertain whether it waspresent. With respect to Case No. 2, all that was said there waswith reference to the legal relations between the owner and thedefrauder; the court'smind was not directed toward the possibil-ity that a subsequent purchaser, like G, might intervene. Theprinciplewe are here applying is that if the horse is in the handsof T or of someonewho knew of his fraud, it may be recovered by0. In the hands of an innocent purchaserlike G, the horse maynot be recovered by 0, for reasons we have already indicated.Case No. 4. The case is like Case No. 3, except that afterbuying the horse from T, G sold it to K, who, before he boughtthe horse from G, had been informed of the fraud worked byT on 0. 0 sues K to recover the horse. It is argued on behalfof 0 that K was not an innocent purchaser,since he knew of T'sfraudwhen he bought the horse. In accordancewith the principlelaid down in Case No. 3, 0 became entitled to the horse whenit came into the hands of K. Held, for K. If the argumentmadeby 0 were accepted, it would be possible for a person in the posi-tion of 0 to destroy the value of the title acquired by G simplyby giving generalpublicity to the fact that T had inducedthe saleby fraud. Thus the objective of protecting the bona fide purchaserG would be defeated, for his property would become unsalable.When the court in Case No. 3 said that 0 could recoverthe horsefromanyone who knew of the fraud of T, it did not have in mindthe possibility that the horse might have passed previously throughthe hands of a bona fide purchaser like G. When the horse wasbought from T by G, title to it was perfected and was no longervulnerableto attack by 0. G was then free to sell it to anyonehe saw fit.Case No. 5. This case is like Case No. 4, except that K notonly knew of T's fraud but had participated in it by forging X'sname on the note used by T to pay 0 for the horse. 0 sues K torecover the horse. K rests his defense on the reasoning of CaseNo. 4; G had title to the horse and was free to sell it to anyonehe saw fit. If K was guilty of any misconduct, that is a questionfor the criminal law; it ought not to affect his property rights.Held? . . . perhaps it would be well to suspend the series at this


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I978] FORMS AND LIMITS 377point and leave to the readerthe burdenof decision and the moreonerous burdenof explanation.

Although the developmenthere traced is considerably neaterthan anything likely to be encounteredin legal history, I assumethat lawyers would generally agree that this sort of thing doesoccur. I assume also it will be agreed that, despite the zigzagpatternwhich the decisionsseem to present, the processillustratedis a "rational"one, falling within the limits of meaningful ad-judication. What is the sourceof this "rational"quality? It seemsclear that it derives from the fact that the courts engaged in thisdevelopmentare drawingout the necessary,or at least the reason-able, implications of a regimeof private propertyand exchange.I suggest more generally that where adjudication appears tooperate meaningfully without the support of rules formally de-clared or accepted in advance, it does so because it draws itsintellectualsustenancefromthe two basic forms of social orderingI have already described. It has done this historically with mostnotable success in the field where the accepted objective is todevelop a regime of reciprocity or exchange. Students of com-parative law are often struck by the fact that in the area ofcommercial transactions courts operating in entirely differentenvironmentsof legal doctrine will often reachidentical or similarresults in the decision of actual cases.But the possibility of a case-by-case developmentof principleis by no means confined to the field of commercialtransactions.For example, the demands of a viable system of federalism areby no means immediatelyobvious. In gradually discoveringandarticulating the principles that will make federalism work, thecourtsmay exemplify the process Mansfieldhad in mind when hespoke of the law "working itself pure."14 Indeed, just such adevelopment was envisaged by Hamilton in No. 82 of the Fed-eralist Papers, where he wrote:

The erection of a new government,whatever care or wisdommay distinguish the work, cannot fail to originate questions ofintricacy and nicety; and these may, in a particularmanner,beexpected to flow fromthe establishmentof a constitutionfoundedupon the total or partial incorporationof a number of distinctsovereignties. 'Tis time only that can mature and perfect socompounda system, can liquidate the meaning of all the parts,and can adjust them to each other in a harmoniousand consistentwhole.15Obviously this kind of development this gradual tracingout of the full implicationsof a system already established can

14 [See I2 W. HOLDSWORTH,A HISTORYOF ENGLISH LAW 55I (1938).]15 [THE FEDERALISTNo. 82 vol. 2, at I30 (A. Hamilton) (Tudor ed. I947).]


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3 78 HARVARDLAW REVIEW [Vol. 92:353take place only in an atmospheredominatedby the shareddesireto make federalismwork.

It should be made clear that the view expressed here isradically different from one which it superficially resembles thatthreatens to become commonplace in sociology. I refer to theconception that in a sufficiently homogeneous society certain"values" will develop automatically and without anyone intend-ing or directing their development. In such a society it is assumedthat the legal rules developed and enforced by courts will reflectthese prevailing"values." In our own discussion,however,we arenot talking aboutdisembodied"values"but about humanpurposesactively, if often tacitly, held and given intelligent direction atcritical junctures. In workingout the implicationsof federalismor of a regime of exchange,a court is not an inert mirror reflect-ing current mores but an active participant in the enterprise ofarticulatingthe implicationsof shared purposes.If the conception here advanced is sound, it follows that inextending "the rule of law" to international relations, law andcommunityof purpose must develop together. It is also apparentthat a community of purpose which consists simply in a shareddesire to avoid reciprocal destruction is too impoverished tofurnish a proper basis for meaningful adjudication. Where theonly sharedobjectiveis the negativeone of preventinga holocaust,there is nothing that can make meaningful a process of decisionthat depends upon proofs and reasonedargument. It is of courseconceivable that, moved by a desire to prevent such a holocaust,two nations (say, Russia and the United States) might submita dispute to arbitration,but they would do so in much the samespirit that they might resort to a throw of the dice -unlessthere were perceived by both some body of principle, howevervague, that might control and give rationality to the decision.Sucha body of emergentprinciplewould have to derive from oneof the two basic principlesof order. In practice this would meanthat it would have to derive from relationships of reciprocity.Hence a desideratum of overriding importance in the relationsof Russia and the United States is the development of everypossible bond of reciprocity, every kind of useful exchange, be-tween the two countries. This is essential not merely to promote"understanding"and an atmosphereof good will but to create acommunity of interest from which adjudication can draw intel-lectual sustenance.

In this connection a development has occurred that, from onepoint of view, seems to leave no hope for the rule of law ininternational relations, but seen from a different vantage pointwill appear as a most encouraging portent. In agreements with


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1978] FORMSAND LIMITS 379foreign tradersSoviet industry has insisted on the inclusion of aclause subjecting all disputes arising out of the agreement toarbitrationbefore a specially constituted Soviet board of arbitra-tion. On its face, one of the most fundamentalprinciples of therule of law -that no man shall be judge in his own cause -seems to be violated. (On a purely formal level, it should benoted, the rule is equally violated by the United States Courtof Claims.) Soviet lawyers seem genuinely eager that this Soviettribunalshall establish a reputationfor impartialityand fairness.Its decisions so far seem generally to merit for it such a reputa-tion.16 Where does this tribunal get its standards of decision?Essentially they are those of a bourgeois trading community.Where else could one go for standards of fair dealings betweentraders? (The situation is reminiscent of certain communitiesin Delaware dedicated to the principlesof the single tax as taughtby Henry George.17In disputes between these communities andtheir membersconcerning the rate to be paid for the use of land,arbitratorshave been compelled to turn to the hated and rejectedland market as offeringthe only meaningful standard of decision.)When the Soviet commercial tribunals have to take theirstandardsof fairness from a system their philosophy condemns,the way has been paved for wider understanding,and with it anatmosphere n whichthereis a real basis for the hope that nationsmay yet be subjected to the rule of law.There remains one furtherpoint of capital importance, thoughof a somewhat abstruse nature. This relates to a possible obstacleto the developmentof the rule of law that may be presented bythe prevailing temper of Western philosophy. I am speakingchiefly of professional philosophy, and particularly of the philos-ophy taught in British and American universities. Though thedirect influenceof this philosophy in practical affairs is slight, itsindirect influence may be of enormous significance. Generationsof students have been raised in a university atmosphere stronglyimbued with the tenets of the philosophers' philosophy of whichI speak.There is a line of thought going back to David Hume accord-ing to which there are two areas, and two areas only, for the op-eration of human reason. These are the areas of empirical factand of logical implication.'8 Stated in another way, the humanmind can occupy itself either by observing facts and testing hy-potheses about these facts or by tracing out the logical implica-

16See Pisar, The Communist System of Foreign-Trade Adjudication, 72 HARV.L. REV. I409 (I959).17 [H. GEORGE,PROGRESS NDPOVERTY(75th ed. I955).]18 [D. HUME, A TREATISE OF HUMAN NATURE 463 (L. Selby-Bigge ed. i888).]


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380 HARVARD LAW REVIEW [Vol. 92:353tions of agreed premises. There is no tertium quid. If in anyprocess of human decision there enters any element that is nottraceable to empirical fact or logical entailment, it is not andcannot be a "rational"element; its originmust be in "sentiment,"not in "reason."Now in Hume's time the implicationsof this philosophy wereperceivedclearly enough, but they were not really taken seriously.Men went right on discussing and arguingissues of morality, law,and politics, assuming all the while that they were engaged inrationaldiscourse, though it was apparent that very little of whatthey said - and that generally the least important - had to dowith empirical fact or logical deduction. But as the decadespassed the exclusions implied in the Humean view came to betaken more seriously and applied more rigorously. More impor-tant, these exclusionspassed over into the general climate of ourtimes.19The view taken in this paper is that adjudicationis a form ofsocial ordering institutionally committed to "rational"decision.This follows from the only mode of participation it accords to theaffected party, the litigant. If we combine this view with theHumean philosophy, what is the result? It is apparent that ad-judicators seldom rest their decisions directly on matters of em-pirical fact. When they seem to do this the "facts" they findare not the kind contemplated by Hume, since they are generallyhuman faults or shortcomings. To "find" such a "fact" is toexpress a condemnation something remote from Hume's "mat-ters of fact." This leaves logical deduction. Now it is apparentthat when adjudication proceeds by previously established rules,at least one aspect of the tribunal's task involves somethingakin to logical deduction. If this is the only significant area ofrationality permitted to adjudication, then it can act rationallyonly insofar as it applies previously established rules. This seemsto be the basis on which Hayek reaches his startling conclusionthat the whole system of the common law is violative of the ruleof law.20Let us apply the Humean test of reason to the paradigmormodel of a case-by-case evolution of legal doctrine previouslygiven, that involving a series of cases having to do with the buyingand stealingof horses. Now there is little in these cases exemplify-ing anything like a discovery of empirical fact. In the early casesthe courts did not have imagination enough to foresee the situa-tions of fact that did later arise, but when those situations arosethey contained nothing not accessible to the minds of the judges

19 See J.W. SMITH, THEME FOR REASON [145-46, I76-77] (I957).20 [FA. HAYEK, supra note ii, at 34-36.]


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I978] FORMS AND LIMITS 38Ifrom the beginning. Nor is there much that can be called deduc-tion from explicit premises. Indeed, the premises seem to beshaped by the conclusions, and clarity of premise comes at theend of the development,not at the beginning. Are we justified incalling the process that is exemplifieda "rational" one? By theHumeantest, the answerwouldhave to be, "No," and the appear-ance of rationalitywould have to rest on some self-deception. Thisis, in fact, the conclusion apparently reached apropos of themodel presented here by a leading American logician.21There is, I submit, a third area of rationaldiscourse,not em-braced by empirical fact or logical implication. This is the areawhere men seek to trace out and articulate the implications ofsharedpurposes. The intellectualactivity that takes place in thisarea resembles logical deduction, but it also differs in importantrespects from it. In logical deduction, the greater the clarity ofthe premise, the moresecure will be the deduction. In the processI have in mind the discussionoften proceedsmost helpfully whenthe purposes, which serve as "premises" or starting points, arestated generallyand are held in intellectualcontact with other re-lated or competingpurposes. The end result is not a meredemon-strationof what follows from a given purpose but a reorganizationand clarificationof the purposesthat constitutedthe startingpointof inquiry.However we may define this third area, a rigid adherence tothe Humeanview is, I believe, destructiveof any understandingofthe problemsof adjudication. It not only falsifies the conditionsessential for the effective operation of adjudicationbut distortsthe meaning of any adjudicative process that is functioning suc-cessfully.

VI. THE FORMS OF ADJUDICATIONi. Introduction

The remainderof this paper will be divided into three mainsections: The Forms of Adjudication, The Limits of Adjudica-tion, and Mixed, Parasitic, and PervertedForms of Adjudication.Of course,all of these topics stand in close relationto one anotherand some degree of anticipationwill be unavoidable.For example, the limits of adjudication are affected by itsforms. Reference has already been made to so-called "tripartite"arbitration. This special and deviant form of adjudicationsome-times makes it possible to undertake through an adjudicativeprocess tasks that could not otherwise be handled satisfactorily

21 See Nagel, Fact, Value and Human Purpose, 4 NAT. L.F. 26 (I959).


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382 HARVARD LAW REVIEW [Vol. 92:353through adjudication at all. At the same time, this form mayimpair the effectivenessof adjudicationin its more usual employ-ments.The joining of "mixed, parasitic, and perverted" forms ofadjudicationin one title should not mislead the reader into think-ing that this paper condemnsall departures of adjudication froma state of pristine purity. Certain mixed forms are valuable andalmost indispensable, though their use is often attended by cer-tain dangers.In determining whether a deviant or mixed form impairs theintegrity of adjudicationthe test throughoutwill be that alreadystressed repeatedly: Does it affect adversely the meaning of theaffected party's participation in the decision by proofs and rea-soned arguments?

2. Is an AdversaryPresentationNecessary to Adjudication? 2TheLawyer'sRole as Advocaten OpenCourt

The lawyer appearingas an advocate before a tribunal pre-sents, as persuasively as he can, the facts and the law of the caseas seen from the standpointof his client's interest. It is essentialthat both the lawyer and the public understand clearly thenature of the role thus discharged. Such an understanding s re-quirednot only to appreciatethe need for an adversary presenta-tion of issues, but also in order to perceive truly the limits par-tisan advocacy must imposeon itself if it is to remainwholesomeand useful.In a very real sense it may be said that the integrity of theadjudicative process itself depends upon the participationof theadvocate. This becomes apparent when we contemplate the na-ture of the task assumedby any arbiter who attempts to decide adispute without the aid of partisan advocacy.Such an arbiter must undertake,not only the role of judge,but that of representativefor both of the litigants. Each of theseroles must be played to the full without being muted by quali-ficationsderivedfromthe others. When he is developingfor eachside the most effective statement of its case, the arbiter mustput aside his neutrality and permit himself to be moved by asympathetic identification sufficiently intense to draw from hismind all that it is capable of giving,-in analysis, patience andcreative power. When he resumeshis neutral position, he must

22 [Under this heading in the original text, Mr. Fuller simply referred thereader to a statement coauthored with John D. Randall entitled ProfessionalResponsibility: Report of the Joint Conference. The Joint Conference on Pro-fessional Responsibility was established in I952 by the American Bar Associationand the Association of American Law Schools. The Report appeared in 44A.B.A.J. II59 (958). A few excerpts from the Report, id. at ii6o-6I, II62, I2I6,have been inserted into the text.]


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384 HARVARDLAW REVIEW [Vol. 92:353Each advocate comes to the hearing prepared to present hisproofs and arguments, knowing at the same time that his argu-ments may fail to persuade and that his proofs may be rejectedas inadequate. It is a part of his role to absorb these possibledisappointments. The deciding tribunal, on the other hand,comes to the hearing uncommitted. It has not represented tothe public that any fact can be proved, that any argument issound, or that any particular way of stating a litigant's case isthe most effective expressionof its merits.

These, then, are the reasons for believing that partisan ad-vocacy plays a vital and essential role in one of the most funda-mental procedures of a democratic society. But if we were toput all of these detailed considerations o one side, we should stillbe confronted by the fact that, in whatever form adjudicationmay appear, the experienced judge or arbitrator desires and ac-tively seeks to obtain an adversary presentation of the issues.Only when he has had the benefit of intelligent and vigorousad-vocacy on both sides can he feel fully confidentof his decision.

Viewed in this light, the role of the lawyer as a partisan ad-vocate appears not as a regrettable necessity, but as an indis-pensable part of a larger ordering of affairs. The institution ofadvocacy is not a concession to the frailties of human nature,but an expressionof humaninsight in the designof a social frame-work within which man's capacity for impartial judgment canattain its fullest realization.When advocacy is thus viewed, it becomes clear by whatprinciple limits must be set to partisanship. The advocate playshis role well when zeal for his client's cause promotes a wiseand informed decision of the case. He plays his role badly, andtrespasses against the obligations of professional responsibility,when his desire to win leads him to muddy the headwaters ofdecision, when, instead of lending a needed perspective to thecontroversy, he distorts and obscuresits true nature.The Lawyer as a Guardian of Due Process

The lawyer's highest loyalty is at the same time the mostintangible. It is a loyalty that runs, not to persons, but to pro-cedures and institutions. The lawyer's role imposes on him atrusteeship for the integrity of those fundamental processes ofgovernmentand self-governmentupon which the successful func-tioning of our society depends.. . .Everywhere democratic and constitutional governmentis tragically dependenton voluntaryand understandingco-opera-tion in the maintenanceof its fundamental processes and forms.It is the lawyer's duty to preserveand advance this indispen-sable co-operationby keeping alive the willingnessto engagein itand by impartingthe understandingnecessaryto give it direction


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I978] FORMS AND LIMITS 385and effectiveness. This is a duty that attaches not only to his pri-vate practice,but to his relationswith the public. In this matterhe is not entitled to take public opinion as a datum by whichto orient and justify his actions. He has an affirmativeduty tohelp shape the growth and development of public attitudes to-ward fair proceduresand due process.

3. May the ArbiterAct on His Own Motion in Initiating the Case?In his The Nature and Sources of the Law, John ChipmanGraywrote:A judge of an organizedbody is a man appointed by that bodyto determine duties and the corresponding rights upon the ap-plication of personsclaiming those rights. It is the fact that suchapplication must be made to him, which distinguishes a judgefrom an administrativeofficer. The essence of a judge's office isthat he shall be impartial, that he is to sit apart, is not to inter-fere voluntarily in affairs . . . but is to determine cases whichare presented to him. To use the phrase of the English Eccle-siastical courts, the office of the judge must be promotedby someone.23

A Germansocialist critic of "bourgeois aw" once caricatured thisview by saying that courts are like defective clocks; they have tobe shaken to set them going. He, of course, added the point thatshaking costs money.Certainlyit is true that in most of the practical manifestationsof adjudication the arbiter's function has to be "promoted" bythe litigant and is not initiated by itself. But is this coy qualityof waiting to be asked an essential part of adjudication?It wouldseem that it is not. Suppose,for example, the collisionof two ships under circumstances that suggest that one or bothmasters were at fault. Suppose a board is given authority to ini-tiate hearings in such a case and to make a determination offault. Such a board might conduct its hearings after the patternof court proceedings. Both masters might be accorded counseland a full opportunity for cross-examination.There would be noimpairment of the affected parties' full participation by proofsand reasonedargument; the integrity of adjudication seems to bepreserved.Yet I think that most of us would considersuch a case excep-tional and would not be deterredby it from persisting in the be-lief that the adjudicativeprocess should normally not be initiatedby the tribunal itself. There are, I believe, sound reasons foradhering to that belief.Certainly it is clear that the integrity of adjudicationis im-

23 [J.C. GRAY,supra note 9, at II4-I5.]


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386 HARVARD LAW REVIEW [Vol. 92:353paired if the arbiter not only initiates the proceedings but also, inadvanceof the public hearing, forms theories aboutwhat happenedand conductshis own factual inquiries. In such a case the arbitercannot bring to the public hearing an uncommitted mind; theeffectiveness of participation through proofs and reasoned argu-ments is accordingly reduced. Now it is probably true that undermost circumstancesthe mere initiation of proceedingscarrieswithit a certain commitment and often a theory of what occurred.The case of the collision at sea is exceptional because there thefacts themselves speak eloquently for the need of some kind ofinquiry, so that the initiation of the proceedings implies nothingmorethan a recognitionof this need. In most situations the initia-tion of proceedings could not have the same neutral quality, as,for example,where the occasion consists simply in the fact that acorporation had gone two years without declaring a dividend.There is another reason which justifies the common conceptionthat it is not normalfor the adjudicativeprocess to be initiated bythe deciding tribunal. If we view adjudication in its widest ex-tension, as including not only the work of courts but also that ofarbitratorsin labor, commerce, and international relations, it isapparent that the overwhelming majority of cases submitted toadjudicationinvolve the assertion of claims founded directly orindirectly on contract or agreement. It seems clear that a regimeof contract (more broadl

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Fuller - The Forms and Limits of Adjudication