dissenting. I find myself unable to agree with the result reached by the majority and with certain of the views expressed in the plurality opinion. I shall address myself first to the conclusion of the majority that the matter of prejudgment interest is properly the subject of the exercise by this Court of its rule making power.
R. 4:42-11(b)1 provides that in tort actions there shall be included in the judgment, interest at 6% per annum on the amount of the award from the date of the commencement of the suit or from a date 6 months after the date of the tort, whichever is later. The majority concludes that this represents a proper exercise of this Court’s rule-making power. I, on the other hand, am convinced that it transcends this power, and should not he allowed to stand as an ongoing rule of court.
The source of this Court’s power to promulgate rules of court appears in our Constitution.2
The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts. [N. J. Const. Art. VI, § 2, par. 3]
*386The power is carefully confined to the areas of judicial administration and of practice and procedure in the several courts of the State. It goes no further. Substantive law, or anything touching substantive law, is clearly excluded. That the exclusion is not explicitly stated is quite understandable. It simply did not' occur to the draftsmen of the Constitution that a claim would ever be made that the Supreme Court could, by its own rule, effect a change in the substantive law.3
Our constitutional grant of rule-making power was definitively interpreted in Winberry v. Salisbury, 5 N. J. 240, (1950), cert. den. 340 U. S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). This Court there held that the words, “subject to law,” were to be interpreted as referring to “substantive law as distinguished from pleading and practice,” 5 N. J. at 247, and that as so interpreted “the rule-making power of *387the Supreme Court is not subject to overriding legislation, but is confined to practice, procedure and administration as such.” 5 N. J. at 255. The. decision left this Court as the final arbiter with respect to matters of practice and procedure. A rule of court as to any such matter would prevail over a legislative enactment. George Siegler Co. v. Norton, 8 N. J. 374 (1952). But it was carefully pointed out, and certainly well understood, that this judicial pre-eminence was confined to matters of practice, procedure and judicial administration. Legislative supremacy in the field of substantive law stood unchallenged. “[T]hey [the courts] are not to make substantive law wholesale through the exercise of the rule-making power.” Winberry v. Salisbury, supra, 5 N. J. at p. 248. Winberry was one of the most important and certainly one of the most widely discussed decisions that this Court has ever handed down. It was not, at the time, universally accepted. See Note, The Rule-Making Power: Subject to Law? 5 Rutgers L. Rev. 376 (1951). It was criticized academically. Kaplan and Greene, The Legislature’s Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury, 65 Harv. L. Rev. 234 (1951). It was equally strongly defended. Pound, Procedure Under Rules of Court in New Jersey, supra, 66 Harv. L. Rev. 28 (1952). My own view of the matter is that Winberry has stood the State in good stead. It has permitted the judiciary to develop rules of practice and procedure that are as uniform as possible among the various courts and so flexible as not to impede the reaching of a just result in any particular case, rules that facilitate judicial administration in the interest of litigants and the public generally and that are being constantly scrutinized and readily changed to meet the demands of altered conditions or unforeseen problems. It is no criticism of the Legislature to express a doubt that so much could have been done there. But I can find nothing in Winberry to justify what the Court has done here. On the contrary, as I shall endeavor to set forth, the lines of demarcation between *388what is proper for this Court to do and what should be solely matter of legislative concern have been ignored and to a considerable extent obliterated. We have trespassed upon the field of substantive law in a purported exercise of the rule-making power and that, at least in my view, we have no right to do.
That the imposition of prejudgment interest is a rule of substantive law seems entirely clear. It effects a change in the law of damages and this is a field of substantive and not procedural law. More importantly, the law of damages forms part of the law of remedies. The award of damages is the remedy most commonly applied in courts of law. Equity affords a greater variety of remedies — rescission, reformation, specific performance, injunction, to name but a few. Surely the body of rules with respect to these and other like remedial devices is substantive law. To illustrate the difference between substance and procedure as applied to a particular remedy, Dean Pound observed in his article in defense of Winberry,
Cases in which injunctions may be granted are a matter of substantive law. The details of procedure in seeking, granting and dissolving them are within the province of the courts. [66 Harv. L. Rev. at 46]
Our Legislature has forbidden courts to issue injunctions in cases involving labor disputes. N. J. S. A. 2A:15-51, et seq. Yet this legislative check upon the free use of the remedy by way of injunction has not called forth any challenge that it usurps this Court’s power to deal with matters of procedure. And it is highly unlikely that it will. So with the other remedies mentioned. When and under what circumstances they are to be applied is matter of substantive law. Professor Lynch, in a recent article that is germane to the issue before us, has said.
No one would seriously argue that the power, to surchage for a specific sum or the power to enjoin is a matter of practice and pro*389cedure. The surcharge and injunction are devices to accomplish the ends of justice. They are specific remedies. [Lynch, The New Jersey Supreme Court and the Counsel Fees Rule: Procedure or Substance and Remedy? 4 Seton Hall L. Rev. 19, 34 (1972) ]
A remedy by way of surcharge is essentially the same as a remedy by the award of damages. And the imposition of prejudgment interest directly affects the amount of a plaintiff’s award. Clearly the rule has changed substantive law.
Or the point may be approached differently. It is said in many cases that laws which fix duties, establish rights and create liabilities are substantive in character, while those which merely prescribe the manner in which rights may be exercised and' liabilities enforced in a court are procedural. The rule we are considering certainly creates a new liability. Viewed in this light as well, it is substantive in nature.
At the threshold of any consideration of the proper exercise by the judiciary of its rule-making power is the need to determine the appropriate philosophical viewpoint which should characterize such an exercise. As the plurality opinion very correctly states, there is often no clear line between what is substantive and what procedural. When faced with such a problem, what should be the posture of the courts? They should, in my opinion, defer to the legislature if the matter under consideration can in any clear way be deemed to affect substantive law. There should be a studied deference to what I believe to be a legislative supremacy in all such matters. While I recognize that strict “compartmentalization of power along triadic lines”4 can probably be achieved only by the political theorist in an exposition of the doctrine of the separation of powers, yet it does remain clear that, while courts share in the work of defining the nature of substantive rights and liabilities when law is determined in the exercise of the adjudicatory process, such definition not only lies at the very heart of the legislative process, but is an area of governance where the legislature clearly has the last word.
*390Courts in other states seem to have been consistently conscious — and in some instances perhaps overly conscious —■ of the importance of maintaining and protecting legislative supremacy in the field of substantive law against any improper intrusion by judicial exercise of the rule-making power. Thus the Supreme Court of Florida deferred to legislation as superseding a conflicting rule of court in the matter of the form of procedure on appeal from an agency to a court, Slate v. Furen, supra, and the Appellate Court of Indiana adopted the view that a statute enumerating the grounds for a new trial took precedence over a rule of court upon the same subject; the court said, “[t]he prescribing of these grounds does not involve a matter of procedure, and no court by decision or rule can modify this statute.” Farmers Mutuals Insurance Co. v. Wolfe, 142 Ind. App. 206, 233 N. E. 2d 690, 692 (1968). While these holdings may seem unduly restrictive of the rule-making power and would presumably not be followed in New Jersey, they do nonetheless evince a deference to the importance of legislation which merits recognition. Perhaps more significant to the present issue is the case of State v. Michael, 2 Md. App. 750, 237 A. 2d 782 (Ct. of Spec. App. Md. 1968). It was there suggested that limitations on actions might be altered by the judicial rule-making process. The court vigorously rejected the proposal, saying that
. . . the grant of rule making power to the Court of Appeals of Maryland by Section 18A of Article IV of the Maryland Constitution is for the purpose of regulating “practice and procedure.” We know of no authority that a statute of limitations comes within such a grant. [237 A. 2d at 785]
Although the statute of limitations, as the plurality opinion points out, is sometimes considered procedural, notably for conflict of laws purposes, it has so many substantive features that the decisive position taken by the Maryland court seems eminently correct. Finally, in State v. Bull, 249 A. 2d 881 (Me. 1969) the Supreme Judicial Court of Maine was *391called upon to resolve an apparent conflict between a rule of court and a statute touching the proper form of an indictment. While finding that the rule prevailed, the court was nevertheless moved to say,
The defendant argues that the Supreme Judicial Court in promulgating rules of criminal procedure has no authority to alter or change substantive criminal law. We hasten to agree that the rule-making power is so limited. [249 A. 2d at 884]
A frank recognition of legislative supremacy in the field of substantive law, taken together with the limitations upon our rule-making power that are fixed by the Constitution and carefully explicated in Winberry should induce this Court to refrain from any exercise of judicial rule-making that may clearly affect substantive law.
This brings me to a further important ground upon which I disagree with the views which here prevail. Throughout much of Part II of the plurality opinion is woven the thread of argument that because the prejudgment interest rule could be adopted in any case coming before the Court where the issue was raised or could be identified, it therefore follows that it may be the subject matter of a rule of court. This argument, I most respectfully submit, inextricably confuses two entirely disparate processes stemming from two quite separate and distinct grants of power.
The rule-making power • — ■ limited as it is to matters touching the administration of the courts and to those of practice and procedure — is, in its exercise, very akin to the legislative process. In the formulation of a rule of court, ideally and often actually, experts are consulted, committees study the proposal and submit reports, and various views are sought at Judicial Conferences as well as elsewhere. Finally the rule is adopted. Experience may dictate later revision. In any event the end product is a rule which will apply with undifferentiated force to any of an indefinite number of situations that may later be found to fall within its ambit. The power to undertake this non-adjudicative process *392of rule-making stems from Artielei VI, § II, par. 3 of the Constitution, which is set forth above.
The rendering of an advisory opinion is a form of non-adjudicative judicial lawmaking akin in many respects to the promulgation of a rule. Consider the following critical factors that have been suggested as characterizing the advisory opinion, each of which in greater or less degree is also rele-' vant in the consideration of the process in which a court engages in the formulation of a rule, especially were it to trench upon substantive law.
(a) The sheer multiplication of matters to which attention must be directed, and the resulting dispersion of thought, when a legal proposition is being formulated in the abstract;
(c) The importance, in the judicial development of law, of a concrete set of facts as an aid to the accurate formulation of the legal issue to be decided — the weight, in other words, which should be given to the maxim, ex facto ius oritur;
(d) The importance of an adversary presentation of evidence as an aid to the accurate determination of the facts out of which the legal issue arises;
(e) The importance of an adversary presentation of argument in the formulation and decision of the legal issue;
(f) The importance of a concrete set of facts in limiting the scope of the legal determination and as an aid to its accurate interpretation ;
(g) The diminished scope for the play of personal convictions or preferences with respect to public policy when decision is focused upon a definite legal issue derived from a concrete set of facts;
(h) The value of having courts function as organs of the sober second thought of the community appraising action already taken, rather than as advisers at the front line of governmental action at the stage of initial decision;
(i) The importance of all the factors enumerated in maximizing the acceptability of decisions, and the importance of acceptable decisions. [Hart and Wechsler, The Federal Courts and The Federal' System (2nd ed. 1973 ) 67.]
Attention is drawn to these factors, indicative of handicaps under which courts labor when they seek to propound rules of law other than in the course of the adjudicative process, not so much to demonstrate that the handicaps exist — although this fact is not irrelevant — as to demonstrate the *393truly real and significant differences in the processes that are followed in the exercise of the two quite disparate types of judicial law-making.
How strikingly different from the process of rule making is the adjudicative process.5 Here a concrete set of facts is presented to the court by identified litigants. In this specific context the issue is precisely delineated. The varied effects of competing rules of law upon the litigants before the court bcome apparent. Evidence and argument are presented through the adversary system. Precedents are studied as to soundness and pertinence. A rule of law emerging from such a context carries with it the evidences of its birth, an especially important consideration when its applicability vel non to a different set of facts is later before a court for decision. The power to undertake this process of law making in the course of adjudicating actual cases stems from Article YI, § 1, par. 1 of the Constitution, which reads as follows:
The judicial power shall be vested in a Supreme Court, a Superior Court, County Courts and inferior courts of limited jurisdiction. The inferior courts and their jurisdiction may from time to time be established, altered or abolished by law.
It is this allocation of judicial power to the courts, including the Supreme Court, that carries with it the power to make new law in the exercise of the adjudicatory process. The development of new law in this latter fashion is an attribute and function of the judicial power.
Thus this Court has been endowed by the Constitution with two separate and entirely distinct powers through the exercise of each of which law may be made. The course and method to be pursued in the exercise of one power are en*394tirely different from those called into play by the exercise of the other. Thera is no room for merger or overlap; the two powers, and the manner of their separate exercise, are discrete and distinct.
A further point deserves comment with respect to judicial law making in the course of deciding cases. It is elementary but perhaps worth repeating that here the power of courts to change the law is confined to those areas uncontrolled by legislative enactment. If the legislature has spoken, and the statute is neither unconstitutional nor impermissibly vague, the only function of the court is to interpret the enactment and give it effect. A judge-made law, so reached in the course of adjudication, may in turn be rejected by the legislature; so, too, a judicial interpretation of a statute which the legislature finds unsatisfactory can be altered by an amendatory enactment making clear the legislative intent which the court has failed to perceive. In short, judge-made law, adopted in the course of adjudicating controversies, is at all times subject to legislative supervision and change. The legislature clearly has the last word.
But this is not so as to rules properly promulgated pursuant to the rule-making power of the Supreme Court. As to such rules in this State the Court has the last word.6 Since this power is properly confined to practice and procedure, it must be assumed that before promulgating a rule the Court has reached a decision that it is moving in the field of adjective law. But if mistakenly, as I believe here to have been the case, the Court should exercise its rule-making power to in fact affect substantive law, it would appear that by so doing it has removed from the reach of our Legislature a matter which is its rightful concern. It needs little imagination to envision the conflicts between coordinate *395branches of government which thus portend. Surely this Court should be deeply and sincerely solicitous to avoid any such unseemly confrontation.
Por the reasons stated I believe the adoption of the rule of court we are considering to have exceeded the constitutional powers of this Court and accordingly would direct that it be expunged.
I now address myself to Part I of the majority opinion where the Court takes up the issue of prejudgment interest as a matter of adjudication in this case. Perhaps not surprisingly it chooses to adopt a rule exactly the same as the rule previously promulgated. This reveals, I think, the fatuity of adopting a rule as to prejudgment interest in the context of these cases. The only rule as to prejudgment interest that was considered by counsel or the Court was the rule already adopted and here under attack. No alternatives to the existing rule were even suggested. What in effect has been done is to ratify and confirm as law a rule which :m-providently came to life in an exercise of rule-making. This awkward and artificial judicial technique has nothing, in my opinion, to recommend it. We should have examined all phases of the problem rather than consider only the rule laid before us. Por instance, is not the better rule that which pertains in equity, that the matter of the imposition of in-erest be left to the sound discretion of the trial judge in each case? I tend at the moment to think it is. Should the rule also apply to unliquidated contract claims? Can it fairly and justly be applied to all tort claims, as for instance, those for defamation? These and other questions should have been posed and answered before we altered the law in this important respect. I am not in favor of adopting any rule at all with respect to prejudgment interest upon the record before us and in the adjudication of this case.
Both as to the conclusions reached in Part I and Part II of the plurality opinion I respectfully dissent and vote to *396strike the interest components from each of the judgments entered below and to direct that R. 4:42-11(b) be expunged from our rules of court.
Hall and Sullivan, JJ., concur in result.
For affirmance — Chief Justice Weinteaub and Justices Jacobs, Peoctoe, Hall and Sullivan — 6.
For reversal — Justice Mountain and Judge Confobd — 2.
Set out fully in the plurality opinion.
The Constitution is not the only source of rule-making power. Courts have the inherent right to adopt rules governing the practice to be followed before the particular court and the manner in which cases shall there be tried. I do not understand it to be argued, however, that reliance is here being placed upon this inherent right, or that the latter is in any way thought to exceed the constitutional grant of power cited above. For a brief history of the exercise by courts in England and in this country of rule-making power pursuant to inherent right, see Pound, Procedure Under Rules of Court in New Jersey, 66 Harv. L. Rev. 28, 35-36 (1952).
Nor do I know of the claim having been made at any time prior to the adoption of the rule here under discussion. In a leading article upon this subject, cited and quoted in the plurality opinion, the authors have this to say:
Nothing could be clearer than the fact that courts in the exercise of the rule-making power have no competence to promulgate rules governing substantive law. [Levin and Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. Pa. L. Rev. 1, 14 (1958)]
I-Iere the experience in a sister state is instructive. The Constitution of the State of Florida provides that
[t]he practice and procedure of all courts shall be governed by rules adopted by the Supreme Court. [Fla. Const., Art. V, § 3, F. S. A.]
As in our Constitution there is no explicit statement that the power does not extend to the area of substantive law. But the Supreme Court of Florida has held that there is implicit in the constitutional grant a limitation that rules must not abridge, enlarge or modify the substantive rights of any litigant. To do so, the court pointed out, would be to ignore the doctrine of the separation of powers and to trespass upon ground exclusively reserved for legislative action. State v. Furen, Fla., 118 So. 2d 6 (1960).
Commenting upon Winberry v. Salisbury, infra, Dean Heckel said, Obviously, when a court is given rule-making power over practice and procedure in the courts, it is not given power in the area of substantive law. [Heckel, Constitutional Law, Survey of the Law of New Jersey, 1950-1951, 6 Rutgers L. Rev. 27, 30 (1951)]
Landis, The Administrative Process (1938) 2.
I am, of course, in complete accord with the view of the majority that courts, in the course of deciding cases, make law. The continuing widespread belief to the contrary is indeed a “stubborn myth.” “I take judge-made law as one of the existing realities of life.” Cardozo, The Nature of the Judicial Process, 10.
“The only state to assert for its Supreme Court uncontrolled and uncontrollable rule-making power is New Jersey.” Levin and Amsterdam, supra, at 24.