The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview

A. Waiting for the Litigants

Lon L. Fuller is one of the most eminent jurisprudents in the Anglo-American tradition. A master of contract law as well as of the philosophy of law, he taught at Harvard Law School from 1939 to 1972. His work in eunomics, which he defined as "the science, theory, or study of good order and workable social arrangements," led him to write extensively on a variety of forms of legal order, including adjudication, mediation, legislation, contract, and managerial direction. The selection here is excerpted from The Forms and Limits of Adjudication," the initial version of which was circulated to the Legal Philosophy Discussion Group at Harvard Law School in 1957. Revised and expanded versions were prepared in 1959 and 1961, but the essay as a whole was not published until 1978, when it appeared in a memorial issue of the Harvard Law Review dedicated to Fuller (92 Harvard Law Review 2 [ 1978]).


MAY THE ARBITER ACT ON HIS OWN MOTION IN
INITIATING THE CASE?

In his The Nature and Sources of the Law, John Chipman Gray wrote:

A judge of an organized body is a man appointed by that body to determine duties and the corresponding rights upon the application of persons claiming those rights. It is the fact that such application must be made to him, which distinguishes a judge from an administrative officer. The essence of a judge's office is that he shall be impartial, that he is to sit apart, is not to interfere voluntarily in affairs . . . but is to determine cases which are presented to him. To use the phrase of the English Ecclesiastical courts, the office of the judge must be promoted by some one.1

A German socialist critic of "bourgeois law" once caricatured this view by saying that courts are like defective clocks; they have to be shaken to set them going. He, of course, added the point that shaking costs money.

Certainly it is true that in most of the practical manifestations of adjudication

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