Bodenheimer and the theories of adjudication

1. BODENHEIMER AND THE THEORIES OF
ADJUDICATION
Submitted To
Mr. Wajid Munir
Submitted by
Wajid Ali
4451/FSL/LLB-F15
(Faculty of Shariah & Law)
International Islamic University Islamabad

2. BODENHEIMER AND THE THEORIES OFADJUDICATION
Edger Bodenheimer denies that the question is whether judges are the makers or
discoverers of the law and says that it cannot be propounded in this way at all. He
argues that
“There are many different types of decisions and it is
impossible to measure all of them with the same yardstick.”
He distinguishes between five different situations.
1st
 Where there is a long-standing common-law rule or a clear statutory rule
applicable to facts of the case before the judge.
 There is no creative activity on the part of the judge.
 This is not a 'hard case' and the judge is not expected to make or discover
law (In Dworkin's parlance).
 This situation can easily be criticized because this is not situation where a
judge may either discover the law or create it.
 Every case that comes even to the highest court of law may not be a ‘hard
case’ (in Dworkin's words).
2nd
 Where there is no precedent, past-case or statutory rule available for the
case in point.
 The court, to arrive at a reasonable solution, can find direct guidance from
the mass of reported decisions.
 In such a situation, argues Bodenheimer,
“The judge discovers proper law in an analogy which rests
on a common social policy connecting the earlier cases with
the rest at bar. Ubi eadem legis ratio, ibieaden dispositeio
(where the reason for the law is the same, the disposition
must be the same).”
 By analogy in Islamic law, this is like Ijtihad ( ‫:)اجتهاد‬ effort of the jurist to
derive the law on an issue by expanding all the available means of
interpretation at his disposal and by taking into account all the legal proofs
related to the issue by the judge.

3. 3rd
 The third situation is when a court has to decide a case according to the
policy of the state.
 In such a situation, judges may have to take into consideration the social and
economic conditions of the people
 They have to decide which law shall prevail while resolving such a case.
 Theoretical example is that if courts are allowed (in a state) to lay down what
type of law should prevail to resolve a social issue, the court in such a
situation finds the law after considering the pressing social and economic
needs of that particular state.
 Bodenheimer's judge in this situation seems to be looking at the collective
good of the community rather than some individual gain to be obtained by
one person at the expense of another.
 In doing so, the judge, sometimes may have to rule in favor of the public
rather than the individual.
 An example in sight could be the famous American case Of Henningsen v.
Bloomfeld Motors, Inc.
in which a New Jersey court had to decide whether an automobile manufacturer
could limit his liability if the automobile is defective, Henningsen had bought a
car, and signed a contract which stipulated that the manufacturer's liability for
defects was limited to 'making good' defective parts— 'this warranty being
expressly in lieu of all other warranties, obligations or liabilities.'
Henningsen argued that, at least in the special circumstances of his case, the
manufacturer ought not to be protected by this limitation, and ought to be made
liable for the medical and Other expenses of persons injured in a crash. He was
not however able to point to any statute, or to any established rule of law, that
prevented the manufacturer from standing on the contract. The court nevertheless
agreed with Henningsen. The court was influenced by the assertions by
Frankfurter, J., who had famously asked 'Is there any principle which is more
familiar or more firmly embedded in the history Of Anglo-American law than the
basic doctrine that the courts will not permit themselves to be used as instruments
of inequity and injustice? "more specifically the courts generally refuse to lend
themselves to the enforcement of 'bargain' in which one party has unjustly taken
advantage of the economic necessities of other.
 By analogy in Islamic law this is the concept of maslaha mursalah (): an
interest that is not supported by an individual text, but is upheld by the texts
considered collectively.

4. 4th
 The fourth situation is where judicial choice between two competing
interests, such as, the right of free press and the right of privacy, is to settle.
 The court in such situations, must consider the whole fabric of the social
order, its prevailing social structure, and the ideals of justice before giving
the decisions.
 This is the borderline area between ‘discovery’ and ‘judicial creativeness’.
 The judge has to consider the moral and ethical values of the society.
 This would necessarily mean that the views of the society may change from
time to time and the judge has to keep on considering the current view rather
than some Old view.
 Is this situation, the judge should allow public interest to prevail over
individual interest.
 Some good examples, from the United Kingdom's jurisdiction would be
Shah v. DPP [1962] and R v. Brown [1993].
 In the former case, the accused had published a directory of prostitutes and
the services they offered. He was found guilty, along with others, of
conspiracy to corrupt public morals. Lord Simmonds claimed that the Courts
have the "residual power" to "conserve the moral welfare of the state. “the
court, thus, ruled in favor of the collective good of the society. Although,
the judge argued from an authoritarian point of view and this may not be the
prevalent view in the UK today.
 In the latter case, a group of sado-masochistic homosexuals were prosecuted
for assault occasioning actual bodily harm after the police received a video
they had made of their activities. Their defense was that since they had
consented to the acts in question there was no assault. The House of Lord
upheld their conviction and ruled that consent could not be a defense to an
assault of this kind. The conviction was justified on the basis of the harm
done, not to the individual, but to society.
5th
 The fifth situation is where there is a case in which no guidance is available
from past-cases and where the community does not seem to have formed an
opinion about the issue.
 The court may then use the law creating technique but such cases may be
very rare.
 This could a situation where statutory rule or settled law is not available.
 He confines the law-creating power of the judge to only this situation.

5. There may well be additions to the situations discussed by Bodenheimer
such as, when a clear statutory rule will lead to an absurdity, then judges many
have to decide the case in point according to standards other than rules.
Summary:
Situations Legal help Judge’s discretion
1
st • Common-law rule
• Clear statutory rule
 No creative activity
 Not a 'hard case’
 Neither make or discover
law
2
nd • No precedent
• No past-case
• No statutory rule
 Discovers proper law
from earlier cases by
analogy
 Ubi eadem legis ratio,
ibieaden dispositeio
 (where the reason for
the law is the same, the
disposition must be the
same)
 Like ijtihad
3
rd
• Decide a case
according to the
policy of the state.
• Decide which law
shall prevail while
resolving
• Collective good of
the community
 Henningsen v.
Bloomfeld motors,
inc.
 Policy of the state
 Consideration the social
and economic conditions
 Rule in favor of the
public rather than the
individual.
 Like maslaha mursalah

6. 4
th
• Judicial choice
between two
competing interests
 Shah v. DPP [1962]
and R v. Brown
[1993].
 Social order, prevailing
social structure, ideals of
justice
 Consider the moral and
ethical values
 Borderline between
‘discovery’ and ‘judicial
Creativeness’
 Public interest to prevail
over individual interest
5
th
• No guidance from
past-cases
• Community does not
have an opinion
• No statutory rule
 Law-creating power
 Judge have to make law
Examples
1.There are many examples of this in the Anglo—American jurisprudence, such
as Riggs v. Palmern
in which a New York court, had to decide whether an heir named in the
will of his grandfather could inherit under that will, even though he had murdered
his grandfather to do so. The court held that all laws as well as all contracts may
be controlled in their operation and effect by general, fundamental maxims
[principles)S03
of the common law.304
The court applied the principle that 'no one
shall Emefit from his own wrong' and held that the murderer shall not inherit under
the will The English case of R v. Re Sigsworth [19351305
is similar to Riggs.
Sigsworth had murdered his mother and claimed her money under The
Administration of Estates Act 1925. The Act stipulates that the estate of a person
who died intestate should pass to the next of kin. The court decided that applying
the rule literally would lead to absurdity and choose to apply legal principle that
•no one shall benefit from his own wrong.
2.Furthermore, what about the amours Grudge Nazi informer case in Germany, as
it is known, (discussed above). 307
In this case a Nazi soldier, who came home on
holiday, and weary of the war, reportedly used offensive Language against Hitler
and the Nazi regime. His wife, who was an informer, reported him to the secret
police. The soldier was prosecuted and given the deaül sentence but was not
executed instead he was sent to the front lines to die in battle. He survived and
sued his ex-wife for illegitimately depriving him of his liberty. The wife argued

7. that she had done nothing wrong as she had a duty to obey the then valid Nazi's
law [a positivistic approach]. The husband argued that since the Nazi law was
against the principles of morality and natural law it was not valid law and she had
no duty to obey it (rather a duty to disobey it as the naturalists contended). Her
action was therefore condemnable. The trial court agreed with the husband and the
woman was convicted but her conviction was set aside by the appellate court on
some other ground.308
In all the above examples, (that we have added to Bodenheimer’
s view), judges
seem to have discovered law, such as in Riggs, and Re Sigswoth, and the Grudge
Nazi informer case.
As Pound argues it is true that law is not embedded or concealed in the body
of the customary law and "[A]ll that judges did was to throw off the wrappings,
and expose the statute over to view."309
It is equally correct that the basic duty of the judge is not to make law like the
legislature.
The correct view is probably taken by
Oliver Windel Holmes when he said:
I recognize without hesitation that judges do and must legislate, but they
can do so only interstitially; they confined from molar to molecular
motions. A Ätnmon lawjudge could not say 'l think the doctrine of
consideration is a bit of historical nonsense and shall not enforce it in
my court.' NO more could a judge exercising the limited jurisdiaim of
admiralty say, 'l think well Of the Common law rules of mastet and
servant and propose to them here Cn bloc.' Certainly, he could not in that
way enlar the exclusive jurisdiction Of the District Courts and cut down
the power of the
Bodenheimer echoes this view when he writes that "since the chief function
of the judge is to decide disputes which have their roots in the past we cannot,
as a matter of general principle, assign to him a full-fledged share in the task of
buiIding the legal order. „311
Accordingly the judge may only extend existing remedies and occasionally
invent a new remedy or defense where the demands of justice make this step
imperative.312
Thus, for Bodenheimer if inventing law is the demand of justice then a judge is
allowed to do it. However, if this is the condition for judicial lawmaking then
it may also be that Bentham, Austin, and Salmond did have this condition in
their minds: that when a judge invents law it is not against the demands of
justice.

8. Application in Modern time:
In modern times when every aspect of life, every business and economic
activity or every transaction, be it in the sphere of civil, criminal or the family,
is subjected to countless rules and regulations there Seems to be nothing or at
least very little left for the judges to legislate On.
They, thus, apply law and interpret it but do not change it or create it.
Moreover, judges do not have the power to increase our salaries, decrease
our taxes, improve Our health or insurance facilities or provide education to the
masses: this is why there is little room for making law.
As a general rule, the judge of today applies the law and does not make it;
the exception being free case which is not covered by any existing statute (not
easy to find).Or previous decision.
He does not discover either because we do not See any role for custom in
our times. Every custom seems to be translated into a statutory rule or has
become the settled law of the past. Precedent!