Even in other systems where the power of judicial initiative is more closely limited by statute, a like development is in the air.Everywhere there is growing emphasis on the analogy between the function of the judge and the function of the legislator.I may instance François Gény who has developed the analogy with boldness and suggestive power.30 "A priori," he says, "the process of research ( la recherche ), which is imposed upon the judge in finding the law seems to us very analogous to that incumbent on the legislator himself.Except for this circumstance, certainly not negligible, and yet of secondary importance, that the process is set in motion by some concrete situation, and in order to adapt the law to that situation, the considerations which ought to guide it are, in respect of the final end to be attained, exactly Of the same nature as those which ought to dominate legislative action itself, since it is a question in each case, of satisfying, as best may be, justice and social utility by an appropriate rule.Hence, I will not hesitate in the silence or inadequacy of formal sources, to indicate as the general line of direction for the judge the following: that he ought to shape his judgment of the law in obedience to the same aims which would be those of a legislator who was proposing to himself to regulate the question.None the less, an important distinction separates here judicial from legislative activity.
While the legislator is not hampered by any limitations in the appreciation of a general situation, which he regulates in a manner altogether abstract, the judge, who decides in view of particular cases, and with reference to problems absolutely concrete, ought, in adherence to the spirit of our modern organization, and in order to escape the dangers of arbitrary action, to disengage himself, so far as possible, of every influence that is personal or that comes from the particular situation which is presented to him, and base his judicial decision on elements of an objective nature.And that is why the activity which is proper to him has seemed to me capable of being justly qualified: free scientific research, libre recherche scientifique :
free, since it is here removed from the action of positive authority; scientific, at the same time, because it can find its solid foundations only in the objective elements which science alone is able to reveal to it." 31The rationale of the modern viewpoint has been admirably expressed by Vander Eycken 32 in his "Méthode positive de l'Interprétation juridique": 33 "Formerly men looked upon law as the product of the conscious will of the legislator.Today they see in it a natural force.
If, however, we can attribute to law the epithet 'natural,' it is, as we have said, in a different sense from that which formerly attached to the expression 'natural law.' That expression then meant that nature had imprinted in us, as one of the very elements of reason, certain principles of which all the articles of the code were only the application.The same expression ought to mean today that law springs from the relations of fact which exist between things.Like those relations themselves, natural law is in perpetual travail.It is no longer in texts or in systems derived from reason that we must look for the source of law; it is in social utility, in the necessity that certain consequences shall be attached to given hypotheses.
The legislator has only a fragmentary consciousness of this law; he translates it by the rules which be prescribes.When the question is one of fixing the meaning of those rules where ought we to search? Manifestly at their source; that is to say, in the exigencies of social life.There resides the strongest probability of discovering the sense of the law.In the same way when the question is one of supplying the gaps in the law, it is not of logical deductions, it is rather of social needs, that we are to ask the solution."Many of the gaps have been filled in the development of the common law by borrowing from other systems.Whole titles in our jurisprudence have been taken from the law of Rome.Some of the greatest of our judges--Mansfield in England, Kent and Story here--were never weary of supporting their judgments by citations from the Digest.We should be traveling too far afield if we were to attempt an estimate of the extent to which the law of Rome has modified the common law either in England or with us.34 Authority it never had.The great historic movement of the Reception did not touch the British Isles.35 Analogies have been supplied.Lines of thought have been suggested.Wise solutions have been offered for problems otherwise insoluble.None the less, the function of the foreign system has been to advise rather than to command.
It has not furnished a new method.It has given the raw material to be utilized by methods already considered--the methods of philosophy and history and sociology--in the moulding of their products.It is only one compartment in the great reservoir of social experience and truth and wisdom from which the judges of the common law must draw their inspiration and their knowledge.
