In a sense it is true that we are applying the method of sociology when we pursue logic and coherence and consistency as the greater social values. None the less, we can never see them with any eyes except our own. But the subject is not exhausted with the recognition of their power. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Equity, to express its disapproval of his conduct, converts him into a trustee. It is often through these subconscious forces that judges are kept consistent with themselves, and inconsistent with one another. A common-law judge could not say, I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court.
The end which the law serves will dominate them all. So far as the distinction has practical significance, the traditions of our jurisprudence commit us to the objective standard. As particular controversies multiplied and the attempt was made to test them by the old principle, it was found that there was something wrong in the results, and this led to a reformulation of the principle itself. He delights in reference and allusion. Even these forces are seldom fully in consciousness. That is an ideal of objective truth toward which every system of jurisprudence tends. The judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision— libre recherche scientifique.
The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. We are constantly misled by our extraordinary faculty of 'rationalizing' — that is, of devising plausible arguments for accepting what is imposed upon us by the traditions of the group to which we belong. New cases by commentary and exposition extract the essence. We leave more to legislatures today, and less perhaps to judges. If the judge is to pronounce it wisely, some principles of selection there must be to guide him among all the potential judgments that compete for recognition. Many of his landmark decisions were delivered during his eighteen-year tenure on the New York Court of Appeals, the highest court of that state. The work of a judge is in one sense enduring and in another sense ephemeral.
It is well enough to say that we shall be consistent, but consistent with what? I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? That, I mean, is the average or aggregate impression which the picture leaves upon the mind. The bad will be rejected and cast off in the laboratory of the years. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. The problem remains to fix the bounds and the tendencies of development and growth, to set the directive force in motion along the right path at the parting of the ways. Much of the process has been unconscious or nearly so.
They are constituents of that social welfare which it is our business to discover. In consecrating them, no one can claim either to be following his will or to be bowing to his judgment. To what sources of information do I appeal for guidance? Absolute liability for one's acts is today the exception; there must commonly be some tinge of fault, whether willful or negligent. It is, however, not so much in the making of new rules as in the application of old ones that the creative energy of custom most often manifests itself today. The instance cannot lead to a generalization till we know it as it is. Rights of action may be assigned, and the buyer prosecute them to judgment though he bought for purposes of suit.
Every judgment has a generative power. Courts still spoke in the phrases of a philosophy that had served its day. A mere technical dogma of the courts or the common law cannot prohibit the commercial world from inventing or issuing any species of security not known in the last century. Conflicting principles were there in competition for the mastery. One department of the government may not force upon another its own standards of propriety.
The persuasion that one's own infallibility is a myth leads by easy stages and with somewhat greater satisfaction to a refusal to ascribe infallibility to others. Be wary of confidence in your priors. All these elements must be considered. In such cases, its demands are often those of mere expediency or prudence. There are doubts and ambiguities to be cleared. The House of Lords holds itself absolutely bound by its own prior decisions. The rule that fits the case may be supplied by the constitution or by statute.
Other conceptions, though they have, of course, a history, have taken form and shape, to a larger extent under the influence of reason or of comparative jurisprudence. They are projections of a principle to its logical outcome, or the outcome supposed to be logical. It has the primacy that comes from natural and orderly and logical succession. The men who wrought them used the same tools as the judges of today. 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. But this autonomy of law, if it were only because of excess or defects of logic, will lead to a divergence between law and the needs of life, which from time to time calls for correction.
In this conflict, we must choose between the two paths, selecting one or other, or perhaps striking out upon a third, which will be the resultant of the two forces in combination, or will represent the mean between extremes. 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. But the power is not lost because it is exercised with caution. 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. What concerns me now is not the remedial device, but rather the underlying motive, the indwelling, creative energy, which brings such devices into play.