Lecture III.
The Method of
Sociology.
The Judge as
a Legislator
I HAVE chosen these branches of the law
merely as conspicuous illustrations of the
application by the courts of the method of
sociology. But the truth is that there is no branch
where the method is not fruitful. Even when it
does not seem to dominate, it is always in reserve.
it is the arbiter between other methods, determining in the last analysis the choice of each,
weighing their competing claims, setting bounds
to their pretensions, balancing and moderating
and harmonizing them all. Few rules in our time
are so well established that they may not be
called upon any day to justify their existence
as means adapted to an end. If they do not function, they are diseased. If they are diseased, they
must not propagate their kind. Sometimes they
are cut out and extirpated altogether. Sometimes
[98]
they are left with the shadow of continued life,
but sterilized, truncated, impotent for harm.
We get a striking illustration of the force of
logical consistency, then of its gradual breaking
down before the demand of practical convenience in isolated or exceptional instances, and
finally of the generative force of the exceptions
as a new stock, in the cases that deal with the
right of a beneficiary to recover on a contract.
England has been logically consistent and has
refused the right of action altogether. New York
and most states yielded to the demands of convenience and enforced the right of action, but
at first only exceptionally and subject to many
restrictions. Gradually the exceptions broadened
till today they have left little of the rule.1 It
survives chiefly in those cases where intention
would be frustrated or convenience impaired by
the extension of the right of action to others than
the contracting parties.2 Rules derived by a
process of logical deduction from pre-established
[99]
conceptions of contract and obligation have
broken down before the slow and steady and
erosive action of utility and justice.3
We see the same process at work in other
fields. We no longer interpret contracts with
meticulous adherence to the letter when in conflict with the spirit. We read covenants into
them by implication when we find them "instinct
with an obligation" imperfectly expressed. "The
law has outgrown its primitive stage of formalism
when the precise word was the sovereign talisman,
and every slip was fatal."4 Perhaps it is in the
field of procedure that we have witnessed the
chief changes; though greater ones must yet be
wrought. Indictments and civil pleadings are
viewed with indulgent eyes. Rulings upon questions of evidence are held with increasing frequency to come within the discretion of the judge
presiding at the trial. Errors are no longer ground
for the upsetting of judgments with the ensuing
horror of new trials, unless the appellate court
[100]
is satisfied that they have affected the result.
Legislation has sometimes been necessary to free
us from the old fetters. Sometimes the conservatism of judges has threatened for an interval
to rob the legislation of its efficacy.5 This danger
was disclosed in the attitude of the courts toward
the reforms embodied in codes of practice, in the
days when they were first enacted.6 Precedents
established in those times exert an unhappy influence even now. None the less, the tendency
today is in the direction of a growing liberalism.
The new spirit has made its way gradually; and
its progress, unnoticed step by step, is visible in
retrospect as we look back upon the distance
traversed. The old forms remain, but they are
filled with a new content. We are getting away
from what Ehrlich calls "die spielerische und
die mathematische Entscheidung,"7 the conception of a lawsuit either as a mathematical problem
[101]
or as a sportsman's game. Our own Wigmore
has done much to make that conception out of
date.8 We are thinking of the end which the law
serves, and fitting its rules to the task of service.
This conception of the end of the law as determining the direction of its growth, which was
Jhering's great contribution to the theory of
jurisprudence,9 finds its organon, its instrument,
in the method of sociology. Not the origin, but
the goal, is the main thing. There can be no
wisdom in the choice of a path unless we know
where it will lead. The teleological conception of
his function must be ever in the judge's mind.
This means, of course, that the juristic philosophy of the common law is at bottom the philosophy of pragmatism.10 Its truth is relative, not
absolute. The rule that functions well produces
[102]
a title deed to recognition. Only in determining
how it functions we must not view it too narrowly. We must not sacrifice the general to the
particular. We must not throw to the winds the
advantages of consistency and uniformity to do
justice in the instance.11 We must keep within
those interstitial limits which precedent and
custom and the long and silent and almost indefinable practice of other judges through the
centuries of the common law have set to judge-made innovations. But within the limits thus
set, within the range over which choice moves,
the final principle of selection for judges, as for
legislators, is one of fitness to an end. "Le but
est la vie interne, l'âme cachée, mais génératrice,
de tous les droits."12 We do not pick our rules
of law full-blossomed from the trees. Every judge
consulting his own experience must be conscious
of times when a free exercise of will, directed of
[103]
set purpose to the furtherance of the common
good, determined the form and tendency of a rule
which at that moment took its origin in one
creative act. Savigny's conception of law as
something realized without struggle or aim or
purpose, a process of silent growth, the fruition
in life and manners of a people's history and
genius, gives a picture incomplete and partial.
It is true if we understand it to mean that the
judge in shaping the rules of law must heed the
mores of his day. It is one-sided and therefore
false in so far as it implies that the mores of the
day automatically shape rules which, full grown
and ready made, are handed to the judge.13
Legal norms are confused with legal principles--
Entscheidungsnormen with Rechtssätze.14 Law is,
indeed, an historical growth, for it is an expression of customary morality which develops
silently and unconsciously from one age to another.
[104]
That is the great truth in Savigny's theory
of its origin. But law is also a conscious or purposed growth, for the expression of customary
morality will be false unless the mind of the
judge is directed to the attainment of the moral
end and its embodiment in legal forms.15 Nothing less than conscious effort will be adequate if
the end in view is to prevail. The standards or
patterns of utility and morals will be found by
the judge in the life of the community. They
will be found in the same way by the legislator.
That does not mean, however, that the work of
the one any more than that of the other is a
replica of nature's forms.
There has been much debate among foreign
jurists whether the norms of right and useful
conduct, the patterns of social welfare, are to be
found by the judge in conformity with an objective or a subjective standard. Opposing schools
of thought have battled for each view.16 At times,
[105]
the controversy has seemed to turn upon the
use of words and little more. So far as the distinction has practical significance, the traditions of
our jurisprudence commit us to the objective
standard. I do not mean, of course, that this ideal
of objective vision is ever perfectly attained. We
cannot transcend the limitations of the ego and
see anything as it really is. None the less, the
ideal is one to be striven for within the limits of
our capacity. This truth, when clearly perceived,
tends to unify the judge's function. His duty to
declare the law in accordance with reason and justice is seen to be a phase of his duty to declare it
in accordance with custom. It is the customary
morality of right-minded men and women which
he is to enforce by his decree. A jurisprudence
that is not constantly brought into relation to
objective or external standards incurs the risk
of degenerating into what the Germans call "Die
Gefühlsjurisprudenz," a jurisprudence of mere
sentiment or feeling.17 A judical judgment, says
Stammler, "should be a judgment of objective
[106]
right, and no subjective and free opinion; a
verdict and not a mere personal fiat. Evil stands
the case when it is to be said of a judicial decree
as the saying goes in the play of the 'Two Gentlemen of Verona' (Act I, sc. ii):
"'I have no other but a woman's reason;
I think him so, because I think him so.'"18 Scholars of distinction have argued for a more
subjective standard. "We all agree," says Professor Gray,19 "that many cases should be decided by the courts on notions of right and
wrong, and, of course, everyone will agree that
a judge is likely to share the notions of right and
wrong prevalent in the community in which he
lives; but suppose in a case where there is
nothing to guide him but notions of right and
wrong, that his notions of right and wrong differ
from those of the community--which ought he
to follow--his own notions, or the notions of the
community? Mr. Carter's theory ["Origin and
Sources of Law," J. C. Carter] requires him to
[107]
say that the judge must follow the notions of the
community. I believe that he should follow his
own notions." The hypothesis that Professor
Gray offers us is not likely to be realized in
practice. Rare indeed must be the case when,
with conflicting notions of right conduct, there
will be nothing else to sway the balance. If, how
ever, the case supposed were here, a judge, I
think, would err if he were to impose upon the
community as a rule of life his own idiosyncrasies
of conduct or belief. Let us suppose, for illustration, a judge who looked upon theatre-going as
a sin. Would he be doing right if, in a field where
the rule of law was still unsettled, he permitted
this conviction, though known to be in conflict
with the dominant standard of right conduct, to
govern his decision? My own notion is that he
would be under a duty to conform to the accepted standards of the community, the mores
of the times. This does not mean, however, that
a judge is powerless to raise the level of prevailing conduct. In one field or another of activity,
practices in opposition to the sentiments and
[108]
standards of the age may grow up and threaten
to intrench themselves if not dislodged. Despite
their temporary hold, they do not stand comparison with accepted norms of morals. Indolence
or passivity has tolerated what the considerate
judgment of the community condemns. In such
cases, one of the highest functions of the judge
is to establish the true relation between conduct
and profession. There are even times, to speak
somewhat paradoxically, when nothing less than
a subjective measure will satisfy objective standards. Some relations in life impose a duty to
act in accordance with the customary morality
and nothing more. In those the customary
morality must be the standard for the judge.
Caveat emptor is a maxim that will often have
to be followed when the morality which it expresses is not that of sensitive souls. Other relations in life, as, eg., those of trustee and
beneficiary, or principal and surety, impose a
duty to act in accordance with the highest standards which a man of the most delicate conscience
and the nicest sense of honor might impose upon
[109]
himself. In such cases, to enforce adherence to
those standards becomes the duty of the judge.
Whether novel situations are to be brought
within one class of relations or within the other
must be determined, as they arise, by considerations of analogy, of convenience, of fitness, and
of justice.
The truth, indeed, is, as I have said, that the
distinction between the subjective or individual
and the objective or general conscience, in the
field where the judge is not limited by established
rules, is shadowy and evanescent, and tends to
become one of words and little more. For the
casuist and the philosopher, it has its speculative
interest. In the practical administration of justice, it will seldom be decisive for the judge.
This is admitted by Brütt, one of the staunchest
upholders of the theory of objective right.20 The
perception of objective right takes the color of
the subjective mind. The conclusions of the
subjective mind take the color of customary
practices and objectified beliefs. There is constant
[110]
and subtle interaction between what is
without and what is within. We may hold, on the
one side, with Tarde and his school, that all
social innovations come "from individual inventions spread by imitation"21 or on the other side,
with Durkheim and his school, that all such
innovations come "through the action of the
social mind."22 In either view, whether the impulse spreads from the individual or from society,
from within or from without, neither the components nor the mass can work in independence
of each other. The personal and the general mind
and will are inseparably united. The difference,
as one theory of judicial duty or the other prevails, involves at most a little change of emphasis, of the method of approach, of the point
of view, the angle, from which problems are envisaged. Only dimly and by force of an influence
subconscious, or nearly so, will the difference be
reflected in the decisions of the courts.
[111]
My analysis of the judicial process comes then
to this, and little more: logic, and history, and
custom, and utility, and the accepted standards
of right conduct, are the forces which singly or
in combination shape the progress of the law.
Which of these forces shall dominate in any
case must depend largely upon the comparative
importance or value of the social interests that
will be thereby promoted or impaired.23 One of
the most fundamental social interests is that
law shall be uniform and impartial. There must
be nothing in its action that savors of prejudice
or favor or even arbitrary whim or fitfulness.
Therefore in the main there shall be adherence
to precedent. There shall be symmetrical development, consistently with history or custom when
history or custom has been the motive force, or
the chief one, in giving shape to existing rules,
and with logic or philosophy when the motive
power has been theirs. But symmetrical develop
ment may be bought at too high a price. Uniformity
[112]
ceases to be a good when it becomes
uniformity of oppression. The social interest
served by symmetry or certainty must then be
balanced against the social interest served by
equity and fairness or other elements of social
welfare. These may enjoin upon the judge the
duty of drawing the line at another angle, of
staking the path along new courses, of marking a
new point of departure from which others who
come after him will set out upon their journey.
If you ask how he is to know when one interest outweighs another, I can only answer that
he must get his knowledge just as the legislator
gets it, from experience and study and reflection;
in brief, from life itself. Here, indeed, is the
point of contact between the legislator's work
and his. The choice of methods, the appraisement
of values, must in the end be guided by like
considerations for the one as for the other. Each
indeed is legislating within the limits of his
competence. No doubt the limits for the judge
are narrower. He legislates only between gaps.
He fills the open spaces in the law. How far he
[113]
may go without traveling beyond the walls of
the interstices cannot be staked out for him
upon a chart. He must learn it for himself as he
gains the sense of fitness and proportion that
comes with years of habitude in the practice of
an art. Even within the gaps, restrictions not
easy to define, but felt, however impalpable they
may be, by every judge and lawyer, hedge and
circumscribe his action. They are established by
the traditions of the centuries, by the example
of other judges, his predecessors and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the
pervading spirit of the law. "Il ne peut intervenir," says Charmont,24 "que pour suppléer les
sources formelles, mais il n'a pas, dans cette
mesure même, toute latitude pour créer des
régles de droit. Il ne peut ni faire échec aux
principes généraux de notre organisation jun
dique, explicitement on implicitement consacrés,
ni formuler une réglementation de detail pour
l'exercise de certains droits, en établissant des
[114]
délais, des formalités, des règles de publicité."25
None the less, within the confines of these open
spaces and those of precedent and tradition,
choice moves with a freedom which stamps its
action as creative. The law which is the resulting
product is not found, but made. The process,
being legislative, demands the legislator's wisdom.
[115]
There is in truth nothing revolutionary or
even novel in this view of the judicial function.26 It is the way that courts have gone about their
business for centuries in the development of the
common law. The difference from age to age is
not so much in the recognition of the need that
law shall conform itself to an end. It is rather
in the nature of the end to which there has been
need to conform. There have been periods when
uniformity, even rigidity, the elimination of the
personal element, were felt to be the paramount
needs.27 By a sort of paradox, the end was best
served by disregarding it and thinking only of
the means. Gradually the need of a more flexible
system asserted itself. Often the gap between the old rule and the new was bridged by the pious fraud of a fiction.28 The thing which concerns us here is that it was bridged whenever the
[116]
importance of the end was dominant. Today the
use of fictions has declined; and the springs of
action are disclosed where once they were concealed. Even now, they are not fully known,
however, even to those whom they control. Much
of the process has been unconscious or nearly so.
The ends to which courts have addressed themselves, the reasons and motives that have guided
them, have often been vaguely felt, intuitively
or almost intuitively apprehended, seldom explicitly avowed. There has been little of deliberate introspection, of dissection, of analysis,
of philosophizing. The result has been an amalgam of which the ingredients were unknown or
forgotten. That is why there is something of a
shock in the discovery that legislative policy has
made the compound what it is. "We do not
[117]
realize," says Holmes,29 "how large a part of
our law is open to reconsideration upon a slight
change in the habit of the public mind. No concrete proposition is self-evident, no matter how
ready we may be to accept it, not even Mr. Herbert Spencer's every man has a right to do what
he wills, provided he interferes not with a like
right on the part of his neighbors." "Why," he
continues, "is a false and injurious statement
privileged, if it is made honestly in giving information about a servant? It is because it has
been thought more important that information
should be given freely, than that a man should
be protected from what under other circumstances would be an actionable wrong. Why is
a man at liberty to set up a business which he
knows will ruin his neighbor? It is because the
public good is supposed to be best subserved by
free competition. Obviously such judgments of
relative importance may vary in different times
and places. . . . I think that the judges themselves have failed adequately to recognize their
[118]
duty of weighing considerations of social advantage. The duty is inevitable, and the result of
the often proclaimed judicial aversion to deal
with such considerations is simply to leave the
very ground and foundation of judgments inarticulate, and often unconscious, as I have
said."
Not only in our common law system has this
conception made its way. Even in other systems
where the power of judicial initiative is more
closely limited by statute, a like development is
in the air. Everywhere there is growing emphasis
on the analogy between the function of the
judge and the function of the legislator. I may
instance François Gény who has developed the
analogy with boldness and suggestive power.30
"A priori," he says, "the process of research (la
recherche), which is imposed upon the judge in
finding the law seems to us very analogous to
that incumbent on the legislator himself. Except
for this circumstance, certainly not negligible,
and yet of secondary importance, that the process
[119]
is set in motion by some concrete situation, and
in order to adapt the law to that situation, the
considerations which ought to guide it are, in
respect of the final end to be attained, exactly Of
the same nature as those which ought to dominate legislative action itself, since it is a question
in each case, of satisfying, as best may be, justice
and social utility by an appropriate rule. Hence,
I will not hesitate in the silence or inadequacy
of formal sources, to indicate as the general line
of direction for the judge the following: that he
ought to shape his judgment of the law in obedience
to the same aims which would be those of
a legislator who was proposing to himself to
regulate the question. None the less, an important distinction separates here judicial from
legislative activity. While the legislator is not
hampered by any limitations in the appreciation
of a general situation, which he regulates in a
manner altogether abstract, the judge, who decides in view of particular cases, and with reference to problems absolutely concrete, ought, in
adherence to the spirit of our modern organization,
[120]
and in order to escape the dangers of
arbitrary action, to disengage himself, so far as
possible, of every influence that is personal or
that comes from the particular situation which
is presented to him, and base his judicial decision
on elements of an objective nature. And that is
why the activity which is proper to him has
seemed to me capable of being justly qualified:
free scientific research, libre recherche scientifique: free, since it is here removed from the
action of positive authority; scientific, at the
same time, because it can find its solid foundations only in the objective elements which science
alone is able to reveal to it."31
The rationale of the modern viewpoint has
been admirably expressed by Vander Eycken32
in his "Méthode positive de l'Interprétation
juridique":33 "Formerly men looked upon law
as the product of the conscious will of the
legislator. Today they see in it a natural force.
[121]
If, however, we can attribute to law the epithet
'natural,' it is, as we have said, in a different
sense from that which formerly attached to the
expression 'natural law.' That expression then
meant that nature had imprinted in us, as one
of the very elements of reason, certain principles
of which all the articles of the code were only
the application. The same expression ought to
mean today that law springs from the relations
of fact which exist between things. Like those
relations themselves, natural law is in perpetual
travail. It is no longer in texts or in systems derived from reason that we must look for the
source of law; it is in social utility, in the necessity that certain consequences shall be attached
to given hypotheses. The legislator has only a
fragmentary consciousness of this law; he translates it by the rules which be prescribes. When
the question is one of fixing the meaning of those
rules where ought we to search? Manifestly at
their source; that is to say, in the exigencies of
social life. There resides the strongest probability of discovering the sense of the law. In the
[122]
same way when the question is one of supplying
the gaps in the law, it is not of logical deductions, it is rather of social needs, that we are to
ask the solution."
Many of the gaps have been filled in the development of the common law by borrowing from
other systems. Whole titles in our jurisprudence
have been taken from the law of Rome. Some of
the greatest of our judges--Mansfield in England, Kent and Story here--were never weary
of supporting their judgments by citations from
the Digest. We should be traveling too far afield
if we were to attempt an estimate of the extent
to which the law of Rome has modified the
common law either in England or with us.34
Authority it never had. The great historic movement of the Reception did not touch the British
Isles.35 Analogies have been supplied. Lines of
thought have been suggested. Wise solutions
[123]
have been offered for problems otherwise insoluble. None the less, the function of the foreign system has been to advise rather than to
command. It has not furnished a new method. It
has given the raw material to be utilized by
methods already considered--the methods of
philosophy and history and sociology--in the
moulding of their products. It is only one compartment in the great reservoir of social experience and truth and wisdom from which the
judges of the common law must draw their inspiration and their knowledge.
In thus recognizing, as I do, that the power
to declare the law carries with it the power, and
within limits the duty, to make law when none
exists, I do not mean to range myself with the
jurists who seem to hold that in reality there is
no law except the decisions of the courts. I
think the truth is midway between the extremes
that are represented at one end by Coke and
Hale and Blackstone and at the other by such
authors as Austin and Holland and Gray and
Jethro Brown. The theory of the older writers
[124]
was that judges did not legislate at all. A pre-existing rule was there, imbedded, if concealed,
in the body of the customary law. All that the
judges did was to throw off the wrappings, and
expose the statue to our view.36 Since the days
of Bentham and Austin, no one, it is believed,
has accepted this theory without deduction or
reserve, though even in modern decisions we find
traces of its lingering influence. Today there is
rather danger of another though an opposite
error. From holding that the law is never made
by judges, the votaries of the Austinian analysis
have been led at times to the conclusion that it is never made by anyone else. Customs, no matter
how firmly established, are not law, they say,
until adopted by the courts.37 Even statutes are
not law because the courts must fix their meaning. That is the view of Gray in his "Nature and
Sources of the Law."38 "The true view, as I
[125]
submit," he says, "is that the Law is what the
Judges declare; that statutes, precedents, the opinions of learned experts, customs and morality
are the sources of the Law."39 So, Jethro Brown
in a paper on "Law and Evolution,"40 tells us that
a statute, till construed, is not real law. It is only
"ostensible" law. Real law, he says, is not found
anywhere except in the judgment of a court. In
that view, even past decisions are not law. The
courts may overrule them. For the same reason
present decisions are not law, except for the
parties litigant. Men go about their business from
day to day, and govern their conduct by an ignis
fatuus. The rules to which they yield obedience
are in truth not law at all. Law never is, but is
always about to be. It is realized only when
embodied in a judgment, and in being realized,
expires. There are no such things as rules or
principles: there are only isolated dooms.
A definition of law which in effect denies the
possibility of law since it denies the possibility of
[126]
rules of general operation41 must contain within
itself the seeds of fallacy and error. Analysis is
useless if it destroys what it is intended to explain. Law and obedience to law are
facts confirmed every day to us all in our experience of
life. If the result of a definition is to make them
seem to be illusions, so much the worse for the
definition; we must enlarge it till it is broad
enough to answer to realities. The outstanding
truths of life, the great and unquestioned
phenomena of society, are not to be argued away
as myths and vagaries when they do not fit
within our little moulds. If necessary, we must
remake the moulds. We must seek a conception
of law which realism can accept as true. Statutes
do not cease to be law because the power to
fix their meaning in case of doubt or ambiguity
has been confided to the courts. One might as
well say for like reasons that contracts have no
reality as expressions of a contracting will. The
quality of law is not withdrawn from all precedents, however well established, because courts
[127]
sometimes exercise the privilege of overruling
their own decisions. Those, I think, are the conclusions to which a sense of realism must lead
us. No doubt there is a field within which judicial
judgment moves untrammeled by fixed principles. Obscurity of statute or of precedent or of
customs or of morals, or collision between some
or all of them, may leave the law unsettled, and
cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly
legislative in function. In such cases, all that
the parties to the controversy can do is to forecast the declaration of the rule as best they can,
and govern themselves accordingly. We must
not let these occasional and relatively rare instances blind our eyes to the innumerable in
stances where there is neither obscurity nor
collision nor opportunity for diverse judgment.
Most of us live our lives in conscious submission
to rules of law, yet without necessity of resort
to the courts to ascertain our rights and duties.
Lawsuits are rare and catastrophic experiences
for the vast majority of men, and even whem the
[128]
catastrophe ensues, the controversy relates most
often not to the law, but to the facts. In countless litigations, the law is so clear that judges
have no discretion. They have the right to legislate within gaps, but often there are no gaps. We
shall have a false view of the landscape if we
look at the waste spaces only, and refuse to see
the acres already sown and fruitful. I think the
difficulty has its origin in the failure to distinguish between right and power, between the
command embodied in a judgment and the jural
principle to which the obedience of the judge is
due. Judges have, of course, the power, though
not the right, to ignore the mandate of a statute,
and render judgment in despite of it. They have
the power, though not the right, to travel beyond
the walls of the interstices, the bounds set to
judicial innovation by precedent and custom.
None the less, by that abuse of power, they violate the law. If they violate it willfully, i.e., with
guilty and evil mind, they commit a legal wrong,
and may be removed or punished even though
the judgments which they have rendered stand.
[129]
In brief, there are jural principles which limit
the freedom of the judge,42 and, indeed, in the
view of some writers, which we do not need to
endorse, the freedom of the state itself.43 Life
may be lived, conduct may be ordered, it is lived
and ordered, for unnumbered human beings
without bringing them within the field where
the law can be misread, unless indeed the misreading be accompanied by conscious abuse of
power. Their conduct never touches the borderland, the penumbra, where controversy begins.
They go from birth to death, their action
restrained at every turn by the power of the
state, and not once do they appeal to judges to
mark the boundaries between right and wrong.
I am unable to withhold the name of law from
rules which exercise this compulsion over the
fortunes of marikind.44
[130]
The old Blackstonian theory of pre-existing
rules of law which judges found, but did not
make, fitted in with a theory still more ancient,
the theory of a law of nature. The growth of
that conception forms a long and interesting
chapter in the history of jurisprudence and
political science.45 The doctrine reached its
highest development with the Stoics, has persisted in
varying phases through the centuries, and imbedding itself deeply in common forms of speech
and thought, has profoundly influenced the
speculations and ideals of men in statecraft and
in law. For a time, with the rise and dominance
of the analytical school of jurists, it seemed discredited and
abandoned.46
Recent juristic thought
has given it a new currency, though in a form so
profoundly altered that the old theory survives
[131]
in little more than name.47 The law of nature is
no longer conceived of as something static and
eternal. It does not override human or positive
law. It is the stuff out of which human or positive
law is to be woven, when other sources fail.48
"The modern philosophy of law comes in contact
with the natural law philosophy in that the one
as well as the other seeks to be the science of
the just. But the modern philosophy of law departs essentially from the natural-law philosophy
in that the latter seeks a just, natural law outside of positive law, while the new philosophy of
law desires to deduce and fix the element of the
just in and out of the positive law--out of what
it is and of what it is becoming. The natural law
school seeks an absolute, ideal law, 'natural law,'
the law [Greek characters], by the side of which
positive law has only secondary importance. The
[132]
modern philosophy of law recognizes that there
is only one law, the positive law, but it seeks its
ideal side, and its enduring idea."49 I am not
concerned to vindicate the accuracy of the
nomenclature by which the dictates of reason
and conscience which the judge is under a duty
to obey are given the name of law before he has embodied
them in a judgment and set the imprimatur of the law upon
them.50 I shall not be
troubled if we say with Austin and Holland and
Gray and many others that till then they are
moral precepts, and nothing more. Such verbal
disputations do not greatly interest me. What
really matters is this, that the judge is under a
duty, within the limits of his power of innovation, to maintain a relation between law and
morals, between the precepts of jurisprudence
[133]
and those of reason and good conscience. I suppose it is true in a certain sense that this duty
was never doubted.51 One feels at times, however,
that it was obscured by the analytical jurists,
who, in stressing verbal niceties of definition,
made a corresponding sacrifice of emphasis upon
the deeper and finer realities of ends and aims
and functions. The constant insistence that
morality and justice are not law has tended to
breed distrust and contempt of law as something
to which morality and justice are not merely
alien, but hostile. The new development of
"naturrecht" may be pardoned infelicities of
phrase, if it introduces us to new felicities of
methods and ideals. Not for us the barren
logomachy that dwells upon the contrasts between law and justice, and forgets their deeper
harmonies. For us rather the trumpet call of
the French "code civil":52 "Le juge, qui refusera
de juger, sous prétexte du silence, de l'obscurité
[134]
ou de l'insuffisance de la loi, pourra être pour.
suivi comme coupable de déni de justice."53 "It
is the function of our courts," says an acute
critic, "to keep the doctrines up to date with
the mores by continual restatement and by giving them a continually new content. This is
judicial legislation, and the judge legislates at
his peril. Nevertheless, it is the necessity and
duty of such legislation that gives to judicial
office its highest honor; and no brave and honest
judge shirks the duty or fears the peril."54
You may say that there is no assurance that
judges will interpret the mores of their day more
wisely and truly than other men. I am not disposed to deny this, but in my view it is quite
beside the point. The point is rather that this
power of interpretation must be lodged somewhere, and the custom of the constitution has
lodged it in the judges. If they are to fulfill their
[135]
function as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject
to constant testing and retesting, revision and
readjustment; but if they act with conscience
and intelligence, they Ought to attain in their
conclusions a fair average of truth and wisdom.
The recognition of this power and duty to shape
the law in conformity with the customary morality
is something far removed from the destruction of all rules and the substitution in every
instance of the individual sense of justice, the
arbitrium boni viri.55 That might result in a
benevolent despotism if the judges were benevolent men. It would put an end to the reign of law.
The method of sociology, even though applied
with greater freedom than in the past, is heading
us toward no such cataclysm. The form and
structure of the organism are fixed. The cells in
which there is motion do not change the proportions of the mass. Insignificant is the power
of innovation of any judge, when compared with
[136]
the bulk and pressure of the rules that hedge
him on every side. Innovate, however, to some
extent, he must, for with new conditions there
must be new rules. All that the method of
sociology demands is that within this narrow
range of choice he shall search for social justice.
There were stages in the history of the law when
a method less psychological was needed. The
old quantitative tests of truth did not fail in
their day to serve the social needs.56 Their day
has long passed. Modern juristic thought, turning in upon itself, subjecting the judicial process
to introspective scrutiny, may have given us a
new terminology and a new emphasis. But in
truth its method is not new. It is the method of
the great chancellors, who without sacrificing
uniformity and certainty built up the system of
equity with constant appeal to the teachings Of
right reason and conscience. It is the method by
which the common law has renewed its life at
[137]
the hands of its great masters--the method of
Mansfield and Marshall and Kent and Holmes.
There have, indeed, been movements, and in
our own day, to make the individual sense of
justice in law as well as in morals the sole
criterion of right and wrong. We are invited,
in Gény's phrase, to establish a system of
"juridical anarchy" at worst, or of "judicial impressionism" at
best.57 The experiment, or something at least approaching it, was tried not long
ago in France. There are sponsors of a like creed
among the critics of our own courts.58 The
French experiment, which has become known as
le phénomène Magnaud, is the subject of a
chapter in the epilogue to the last edition, published in 1919,
of Gény's brilliant book.59
Between 1889 and 1904, the tribunal of the first
[138]
instance of Château-Thierry, following the lead
of its chief, le President Magnaud, initiated a
revolt against the existing order in jurisprudence.
Its members became known as the good judges,
"les bons juges." They seem to have asked themselves
in every instance what in the circumstances before them a good man would wish to
do, and to have rendered judgment accordingly.
Sometimes this was done in the face of inconsistent statutes. I do not profess to know their
work at first hand. Gény condemns it, and says
the movement has spent its force. Whatever the
merits or demerits of such impressionism may be,
that is not the judicial process as we know it in
our law.60 Our jurisprudence has held fast to
Kant's categorical imperative, "Act on a maxim
which thou canst will to be law universal." It
has refused to sacrifice the larger and more
inclusive good to the narrower and smaller. A contract is made. Performance is burdensome and
perhaps oppressive. If we were to consider only
the individual instance, we might be ready to
[139]
release the promisor. We look beyond the particular to the universal, and shape our judgment
in obedience to the fundamental interest of
society that contracts shall be fulfilled. There is
a wide gap between the use of the individual
sentiment of justice as a substitute for law, and
its use as one of the tests and touchstones in
construing or extending law. I think the tone and
temper in which the modern judge should set
about his task are well expressed in the first
article of the Swiss Civil Code of 1907, an
article around which there has grown up a large
body of juristic commentary. "The statute," says
the Swiss Code, "governs all matters within the
letter or the spirit of any of its mandates. In
default of an applicable statute, the judge is to
pronounce judgment according to the customary
law, and in default of a custom according to the
rules which he would establish if he were to
assume the part of a legislator. He is to draw
his inspiration, however, from the solutions consecrated by the doctrine of the learned and the
jurisprudence of the courts--par la doctrine et
[140]
la jurisprudence."61 There, in the final precept,
is the gist of the difference between "le phénomène Magnaud,"
and justice according to
law. The judge, even when he is free, is still not
wholly free. He is not to innovate at pleasure.
He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness.
He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system,
and subordinated to "the primordial necessity of order
in the social life."62 Wide enough
in all conscience is the field of discretion that
remains.
[141]
Continue to Lecture IV
Back to Table of Contents