Those, I think, are the conclusions to which a sense of realism must lead us.No doubt there is a field within which judicial judgment moves untrammeled by fixed principles.Obscurity of statute or of precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retrospectively in the exercise of a power frankly legislative in function.In such cases, all that the parties to the controversy can do is to forecast the declaration of the rule as best they can, and govern themselves accordingly.We must not let these occasional and relatively rare instances blind our eyes to the innumerable in stances where there is neither obscurity nor collision nor opportunity for diverse judgment.Most of us live our lives in conscious submission to rules of law, yet without necessity of resort to the courts to ascertain our rights and duties.Lawsuits are rare and catastrophic experiences for the vast majority of men, and even whem the catastrophe ensues, the controversy relates most often not to the law, but to the facts.In countless litigations, the law is so clear that judges have no discretion.They have the right to legislate within gaps, but often there are no gaps.We shall have a false view of the landscape if we look at the waste spaces only, and refuse to see the acres already sown and fruitful.I think the difficulty has its origin in the failure to distinguish between right and power, between the command embodied in a judgment and the jural principle to which the obedience of the judge is due.Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it.They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom.None the less, by that abuse of power, they violate the law.If they violate it willfully, i.e., with guilty and evil mind, they commit a legal wrong, and may be removed or punished even though the judgments which they have rendered stand. In brief, there are jural principles which limit the freedom of the judge, 42 and, indeed, in the view of some writers, which we do not need to endorse, the freedom of the state itself.43 Life may be lived, conduct may be ordered, it is lived and ordered, for unnumbered human beings without bringing them within the field where the law can be misread, unless indeed the misreading be accompanied by conscious abuse of power.Their conduct never touches the borderland, the penumbra, where controversy begins.
They go from birth to death, their action restrained at every turn by the power of the state, and not once do they appeal to judges to mark the boundaries between right and wrong.I am unable to withhold the name of law from rules which exercise this compulsion over the fortunes of marikind.44 The old Blackstonian theory of pre-existing rules of law which judges found, but did not make, fitted in with a theory still more ancient, the theory of a law of nature.The growth of that conception forms a long and interesting chapter in the history of jurisprudence and political science.45 The doctrine reached its highest development with the Stoics, has persisted in varying phases through the centuries, and imbedding itself deeply in common forms of speech and thought, has profoundly influenced the speculations and ideals of men in statecraft and in law.For a time, with the rise and dominance of the analytical school of jurists, it seemed discredited and abandoned.46 Recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives in little more than name.47 The law of nature is no longer conceived of as something static and eternal.
It does not override human or positive law.It is the stuff out of which human or positive law is to be woven, when other sources fail.48 "The modern philosophy of law comes in contact with the natural law philosophy in that the one as well as the other seeks to be the science of the just.
But the modern philosophy of law departs essentially from the natural-law philosophy in that the latter seeks a just, natural law outside of positive law, while the new philosophy of law desires to deduce and fix the element of the just in and out of the positive law--out of what it is and of what it is becoming.The natural law school seeks an absolute, ideal law, 'natural law,' the law , by the side of which positive law has only secondary importance.The modern philosophy of law recognizes that there is only one law, the positive law, but it seeks its ideal side, and its enduring idea." 49 I am not concerned to vindicate the accuracy of the nomenclature by which the dictates of reason and conscience which the judge is under a duty to obey are given the name of law before he has embodied them in a judgment and set the imprimatur of the law upon them.50 I shall not be troubled if we say with Austin and Holland and Gray and many others that till then they are moral precepts, and nothing more.Such verbal disputations do not greatly interest me.What really matters is this, that the judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience.I suppose it is true in a certain sense that this duty was never doubted.51 One feels at times, however, that it was obscured by the analytical jurists, who, in stressing verbal niceties of definition, made a corresponding sacrifice of emphasis upon the deeper and finer realities of ends and aims and functions.
