Our judges cannot say with Hobbes: "Princes succeed one another, and one judge passeth, another cometh; nay heaven and earth shall pass, but not one tittle of the law of nature shall pass, for it is the eternal law of God.Therefore, all the sentences of precedent judges that have ever been cannot altogether make a law contrary to natural equity, nor any examples of former judges can warrant an unreasonable sentence or discharge the present judge of the trouble of studying what is equity in the case he is to judge from the principles of his own natural reason." 24 Nearer to the truth for us are the words of an English judge: "Our common law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents, and for the sake of attaining uniformity, consistency and certainty, we must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise; and we are not at liberty to reject them and to abandon all analogy to them in those in which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised." 25 This does not mean that there are not gaps, yet unfilled, within which judgment moves untrammeled.
Mr.Justice Holmes has summed it up in one of his flashing epigrams: "Irecognize without hesitation that judges must and do legislate, but they do so only interstitially; they are confined from molar to molecular motions.
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." 26 This conception of the legislative power of a judge as operating between spaces is akin to the theory of "gaps in the law" familiar to foreign jurists.27 "The general framework furnished by the statute is to be filled in for each case by means of interpretation, that is, by following out the principles of the statute.In every case, without exception, it is the business of the court to supply what the statute omits, but always by means of an interpretative function." 28 If the statute is interpreted by the method of "free decision," the process differs in degree rather than in kind from the process fol lowed by the judges of England and America in the development of the common law.Indeed, Ehrlich in a recent book 29 quotes approvingly an English writer, who says 30 that "a code would not, except in a few cases, in which the law at present is obscure, limit any discretion now possessed by the judges.It would simply change the form of the rules by which they are bound." I think that statement overshoots the mark.The fissures in the common law are wider than the fissures in a statute, at least in the form of statute common in England and the United States.In countries where statutes are oftener confined to the announcement of general principles, and there is no attempt to deal with details or particulars, legislation has less tendency to limit the freedom of the judge.That is why in our own law there is often greater freedom of choice in the construction of constitutions than in that of ordinary statutes.Constitutions are more likely to enunciate general principles, which must be worked out and applied thereafter to particular conditions.What concerns us now, however, is not the size of the gaps.It is rather the principle that shall determine how they are to be filled, whether their size be great or small.The method of sociology in filling the gaps puts its emphasis on the social welfare.
Social welfare is a broad term.I use it to cover many concepts more or less allied.It may mean what is commonly spoken of as public policy, the good of the collective body.In such cases, its demands are often those of mere expediency or prudence.It may mean on the other hand the social gain that is wrought by adherence to the standards of right conduct, which find expression in the mores of the community.
In such cases, its demands are those of religion or of ethics or of the social sense of justice, whether formulated in creed or system, or immanent in the common mind.One does not readily find a single term to cover these and kindred aims which shade off into one another by imperceptible gradations.
Perhaps we might fall back with Kohler 31 and Brütt 32 and Berolzheimer 33 on the indefinable, but comprehensive something known as Kultur, if recent history had not discredited it and threatened odium for those that use it.I have chosen in its stead a term which, if not precise enough for the philosopher, will at least be found sufficiently definite and inclusive to suit the purposes of the judge.It is true, Ithink, today in every department of the law that the social value of a rule has become a test of growing power and importance.This truth is powerfully driven home to the lawyers of this country in the writings of Dean Pound.
"Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude." 34 "The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised." 35 Foreign jurists have the same thought: "The whole of the judicial function," says Gmelin, 36 "has...been shifted.The will of the State, expressed in decision and judgment is to bring about a just determination by means of the subjective sense of justice inherent in the judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question.
