Carter's theory requires him to 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 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 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 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.
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 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, Ican 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.
