220 Politics and the judiciary
mere passive beings, incapable of moderating either its force or rigour.’ In
its modern form this view of the function of the judges can be described as
the mechanical theory of jurisprudence. The judges are seen simply as highly
skilled experts in the law, who learn a complex body of rules and then deduce
almost automatically the application of the law to particular cases. From this
point of view the judge is a neutral instrument; he does not interpose his per-
sonality between the general rules of the law and the solution of the practical
problems that he must solve. Justice Roberts made the best statement of this
view by a modern judge in 1936:
When an act of Congress is appropriately challenged in the courts as
not conforming to the constitutional mandate the judicial branch of the
Government has only one duty – to lay the article of the Constitution
which is invoked beside the statute which is challenged and to decide
whether the latter squares with the former. All the Court does, or can do,
is to announce its considered judgement upon the question.But is there a higher law that can be discovered, studied, and applied by the
judges independently of their personal ideas and attitudes? The school of
legal realism challenged the view of the nature of law as simply an exercise
in deductive logic. This school of jurisprudence argued that it is impossible to
deduce unequivocally the application of legal rules in particular cases from
very general and vague statements like those to be found in the Constitution.
The exact decisions made, and therefore the general development of the law,
depend on the way in which the judges exercise their discretion to choose one
possible interpretation rather than another. This is not to say that the judges
would simply decide cases in an arbitrary, erratic fashion. They would be, and
should be, influenced by developments in society, by the needs of the time
and the attitudes of society to the way in which they should be satisfied. This
sociological view of the evolution of the law tends to foster a more flexible ap-
proach to the activity of judicial review, leading eventually to the acceptance
by the Supreme Court of sociological and psychological evidence as relevant
to the solution of judicial problems.
A view of the role of the judges in the political system that is at the other
extreme from that of the mechanical view of jurisprudence has been devel-
oped by the behaviourists. These students of judicial motivation approach the
way in which decisions of the courts are arrived at neither by looking at the
internal logic of the law nor by simply observing the influence of the broad
developments of social forces upon the law. They attempt to explain judicial
behaviour, as other types of political behaviour, by the analysis of the personal
characteristics of the judges, their social background and education, or their
party orientation and ideological attitudes. The voting records of the judges
and their personal characteristics are studied by statistical and mathematical
techniques in the same way as the behaviour of members of the legislature.
If it could be shown that judges with similar personal characteristics consist-