ENFORCEMENT OF LAW

which is responsible for lax enforcement of the substantive law. A better adjustment between law and administration would remove more of this pressure. Mechanical action belongs to law; it is a proper quality of law. Discretion belongs to administra tion; it is a proper quality of administration. In the border line between the two, in places where for historical reasons law is set to do the proper work of administration, the legal theory is necessarily ill-adapted. But the discretion required in those cases is equally ill-adapted to cases ' of proper legal cogni zance. Either the legal theory will be applied to the former or the administrative method to the latter, so long as our confusion of the provinces of law and of administration continues.1 Even with these sources of unscientific application and lax enforce ment attended to, there remains an insolu ble precipitate of difficulty. The conflict between the two elements in the administra tion of justice can only be mitigated. It is one of the inherent difficulties in the way of judicial justice. The demands of times will differ. Some will insist chiefly upon cer tainty. Some will demand chiefly just results in individual cases. Undoubtedly whenever legislation is the type form of law, the latter demand will always be prominent.2 The weak point of cur common-law polity is undeniably administration. I have dis cussed the effect of our conception of the relation of law and administration upon criminal law on another occasion.3 Here I can only indicate briefly how it affects all enforcement and application of law and impairs respect for our legal system. England had a strong central government at an earlier date than the rest of the modern 1 Aristotle saw long ago that the debate as to the relative excellence of government by laws and by men came to this question of the relative provinces of law and administration. Politics, Bk. iii, Chap. 16. 2 " Suitors take no interest in law as a science. They merely desire to have a decision in the case in which they are interested. They are not concerned with what has happened or may happen in any other matter." — Sir John Hollams, Jottings of an Old Solicitor, 161. 3 Inherent and Acquired Difficulties in the Adminis tration of Punitive Justice, Proc. Am. Pol. Sci. Assn. iv, 22.

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world. She had also strong courts of general jurisdiction before her neighbors. Hence before there was much call for administra tion of any modern sort, need had been felt of putting checks upon the English executive in the interest of the individual and of the local community; and strong courts were at hand to impose them. As a result, the individual has all the advantage against society in our legal system and the local community every advantage against the State. Each to large extent may defy society with impunity; for the common law was developed to protect them, not to bring them to their knees. Whenever such defiance takes place, needless to say, respect for law is sadly impaired. Another unfor tunate feature of our common-law polity is the every-day spectacle of law paralyzing executive action, whether by compelling resort to the futile enforcing agency of criminal prosecution, or by its narrow rules as to jurisdiction of administrative tribunals, its presumptions against them and its hyper critical scrutiny of their proceedings, or by legal liabilities imposed upon administrative officers for action under color of their offices, or by direct judicial interference by injunc tion. Almost every day we read of some injunction against executive action. The enforcement of race-track statutes, of Sun day-closing statutes, and of Sunday-baseball statutes has been enjoined in various cities in the past few months. We read one day that the police are enjoined from raiding some notorious establishment. The next we read that they are enjoined from inter fering in a strike. Enjoining of administra tive boards has become too common to attract notice. We have continually before us the unseemly spectacle of one department of government arrayed against another. But the execution of law is the very life of it. Such a system, however wisely the judges administer it, however proper it was in the past, however much it wrought formerly for individual liberty, is wholly put of joint with the present. Not only is it clumsy and wasteful, but it. is demoralizing. Surely