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 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 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.
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 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 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 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.
