Some critics of our public law insist that the power of the courts to fix the limits of permissible encroachment by statute upon the liberty of the individual is one that ought to be withdrawn.75 It means, they say, either too much or too little.If it is freely exercised, if it is made an excuse for imposing the individual beliefs and philosophies of the judges upon other branches of the government, if it stereotypes legislation within the forms and limits that were expedient in the nineteenth or perhaps the eighteenth century, it shackles progress, and breeds distrust and suspicion of the courts.If, on the other hand, it is interpreted in the broad and variable sense which I believe to be the true one, if statutes are to be sustained unless they are so plainly arbitrary and oppressive that right-minded men and women could not reasonably regard them otherwise, the right of supervision, it is said, is not worth the danger of abuse.
"There no doubt comes a time when a statute is so obviously oppressive and absurd that it can have no justification in any sane polity." 76 Such times may indeed come, yet only seldom.The occasions must be few when legislatures will enact a statute that will merit condemnation upon the application of a test so liberal; and if carelessness or haste or momentary passion may at rare intervals bring such statutes into being with hardship to individuals or classes, we may trust to succeeding legislatures for the undoing of the wrong.That is the argument of the critics of the existing system.My own belief is that it lays too little stress on the value of the "imponderables." The utility of an external power restraining the legislative judgment is not to be measured by counting the occasions of its exercise.
The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders.By conscious or subconscious influence, the presence of this restraining power, aloof in the background, but none the less always in reserve, tends to stabilize and rationalize the legislative judgment, to infuse it with the glow of principle, to hold the standard aloft and visible for those who must run the race and keep the faith.77 I do not mean to deny that there have been times when the possibility of judicial review has worked the other way.Legislatures have sometimes disregarded their own responsibility, and passed it on to the courts.Such dangers must be balanced against those of independence from all restraint, independence on the part of public officers elected for brief terms, without the guiding force of a continuous tradition.On the whole, I believe the latter dangers to be the more formidable of the two.Great maxims, if they may be violated with impunity, are honored often with lip-service, which passes easily into irreverence.The restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion.Rather shall we find its chief worth in making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and directing choice within the limits where choice ranges.
This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social needs.
I pass to another field where the dominance of the method of sociology may be reckoned as assured.There are some rules of private law which have been shaped in their creation by public policy, and this, not merely silently or in conjunction with other forces, but avowedly, and almost, if not quite, exclusively.These, public policy, as determined by new conditions, is competent to change.I take as an illustration modern decisions which have liberalized the common law rule condemning contracts in restraint of trade.The courts have here allowed themselves a freedom of action which in many branches of the law they might be reluctant to avow.
Lord Watson put the matter bluntly in Nordenfeldt v.Maxim, Nordenfeldt Guns & Ammunition Co.L.R.1894 App.Cas.535, 553: "A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.The course of policy pursued by any country in relation to, and for promoting the interests of, its commerce must, as time advances and as its commerce thrives, undergo change and development from various causes which are altogether independent of the action of its courts.In England, at least, it is beyond the jurisdiction of her tribunals to mould and stereotype national policy.
Their function, when a case like the present is brought before them, is, in my opinion, not necessarily to accept what was held to have been the rule of policy a hundred or a hundred and fifty years ago, but to ascertain, with as near an approach to accuracy as circumstances permit, what is the rule of policy for the then present time.When that rule has been ascertained, it becomes their duty to refuse to give effect to a private contract which violates the rule, and would, if judicially enforced, prove injurious to the community." A like thought finds expression in the opinions of our own courts."Arbitrary rules which were originally well founded have thus been made to yield to changed conditions, and underlying principles are applied to existing methods of doing business.
The tendencies in most of the American courts are in the same direction." 78 I think we may trace a like development in the attitude of the courts toward the activities of labor unions.The suspicion and even hostility of an earlier generation found reflection in judicial decisions which a changing conception of social values has made it necessary to recast.79 Some remnants of the older point of view survive, but they are remnants only.The field is one where the law is yet in the making or better perhaps in the remaking.We cannot doubt that its new form will bear an impress of social needs and values which are emerging even now to recognition and to power.
