The judgments ought to be fixed, and to such a degree, as to be always conformable to the exact letter of the law. Were they to be the private opinion of the judge, people would then live in a society without knowing exactly the obligation it lays them under.
—Montesquieu. The Spirit of the Laws, 1748.
Legislation that broadly empowers judges to make ‘such orders as the interest of justice may require’, or that describes legislative goals as authority for action, grievously breaches the rule of law. It is better that precisely drafted laws are too harsh in some cases and too lenient in others, or absent altogether, than that they should depend upon the whim of the judge. The rule of law, with all its shortcomings, is infinitely preferable to the rule of men.
Mildly vague provisions in legislation are often repaired, and made certain, by the principle of stare decisis. This is the process whereby the court adheres to earlier decisions. This process gradually makes vague provisions certain and so eliminates discretion from the judicial process. However, stare decisis has great trouble in rectifying grossly vague legislative formulations, such as ‘justice’ or ‘fairness.’ For as oysters cannot establish themselves on sand, it is likewise impossible for precedent to build on such flimsy foundations.
India’s constitution provides a stark example of what not to do. Article 142 empowers the country’s supreme court to make any order “as is necessary for doing complete justice in any cause of matter pending before it.” This amounts to a bestowal of unlimited arbitrary power on that court. Thomas Gordon explained the folly of such arrangements:
Power, without control, appertains to God alone; and no man ought to be trusted with what no man is equal to. In truth there are so many passions, and inconsistencies, and so much selfishness, belonging to human nature, that we can scarce be too much upon our guard against each other. (Cato’s Letters No. 33, Cautions against the natural Encroachments of Power, Saturday, June 17, 1721.)
