But they leave jurisprudence where it stood before.As applied to such cases, the judicial process, as was sald at the outset of these lectures, is a process of search and comparison, and little else.We have to distinguish between the precedents which are merely static, and those which are dynamic.25 Because the former out-number the latter many times, a sketch of the judicial process which concerns itself almost exclusively with the creative or dynamic element, is likely to give a false impression, an overcolored picture, of uncertainty in the law and of free discretion in the judge.Of the cases that come before the court in which I sit, a majority, I think, could not, with semblance of reason, be decided in any way but one.The law and its application alike are plain.Such cases are predestined, so to speak, to affirmance without opinion.In another and considerable percentage, the rule of law is certain, and the application alone doubtful.A complicated record must be dissected, the narratives of witnesses, more or less incoherent and unintelligible, must be analyzed, to determine whether a given situation comes within one district or another upon the chart of rights and wrongs.The traveler who knows that a railroad crosses his path must look for approaching trains.
That is at least the general rule.In numberless litigations the description of the landscape must be studied to see whether vision has been obstructed, whether something has been done or omitted to put the traveler off his guard.Often these cases and others like them provoke differ ence of opinion among judges.
Jurisprudence remains untouched, however, regardless of the outcome.Finally there remain a percentage, not large indeed, and yet not so small as to be negligible, where a decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law.These are the cases where the creative element in the judicial process finds its opportunity and power.It is with these cases that Ihave chiefly concerned myself in all that I have said to you.In a sense it is true of many of them that they might be decided either way.By that I mean that reasons plausible and fairly persuasive might be found for one conclusion as for another.Here come into play that balancing of judgment, that testing and sorting of considerations of analogy and logic and utility and fairness, which I have been trying to describe.
Here it is that the judge assumes the function of a lawgiver.I was much troubled in spirit, in my first years upon the bench, to find how trackless was the ocean on which I had embarked.I sought for certainty.I was oppressed and disheartened when I found that the quest for it was futile.I was trying to reach land, the solid land of fixed and settled rules, the paradise of a justice that would declare itself by tokens plainer and more commanding than its pale and glimmering reflections in my own vacillating mind and conscience.I found "with the voyagers in Browning's 'Paracelsus' that the real heaven was always beyond." 26 As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable.I have grown to see that the process in its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served their day expire, and new principles are born.
I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments.Even these forces are seldom fully in consciousness.They lie so near the surface, however, that their existence and influence are not likely to be disclaimed.But the subject is not exhausted with the recognition of their power.Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.I wish I might have found the time and opportunity to pursue this subject farther.I shall be able, as it is, to do little more than remind you of its existence.27 There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations.I do not doubt the grandeur of the conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces.
