It is, however, not so much in the making of new rules as in the application of old ones that the creative energy of custom most often manifests itself today.General standards of right and duty are established.Custom must determine whether there has been adherence or departure.My partner has the powers that are usual in the trade.They may be so well known that the courts will notice them judicially.Such for illustration is the power of a member of a trading firm to make or indorse negotiable paper in the course of the firm's business.17 They may be such that the court will require evidence of their existence.18 The master in the discharge of his duty to protect the servant against harm must exercise the degree of care that is commonly exercised in like circumstance by men of ordinary prudence.The triers of the facts in determining whether that standard has been attained must consult the habits of life, the everyday beliefs and practices, of the men and women about them.Innumerable, also, are the cases where the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages, of a particular trade or market or profession.19 The constant assumption runs throughout the law that the natural and spontaneous evolutions of habit fix the limits of right and wrong.A slight extension of custom identifies it with customary morality, the prevailing standard of right conduct, the mores of the time.20 This is the point of contact between the method of tradition and the method of sociology.
They have their roots in the same soil.Each method maintains the interaction between conduct and order, between life and law.Life casts the moulds of conduct, which will some day become fixed as law.Law preserves the moulds, which have taken form and shape from life.
Three of the directive forces of our law, philosophy, history and custom, have now been seen at work.We have gone far enough to appreciate the complexity of the problem.We see that to determine to be loyal to precedents and to the principles back of precedents does not carry us far upon the road.
Principles are complex bundles.It is well enough to say that we shall be consistent, but consistent with what? Shall it be consistency with the origins of the rule, the course and tendency of development? Shall it be consistency with logic or philosophy or the fundamental conceptions of jurisprudence as disclosed by analysis of our own and foreign systems?
All these loyalties are possible.All have sometimes prevailed.How are we to choose between them? Putting that question aside, how do we choose between them? Some concepts of the law have been in a peculiar sense historical growths.In such departments, history will tend to give direction to development.In other departments, certain large and fundamental concepts, which comparative jurisprudence shows to be common to other highly developed systems, loom up above all others.In these we shall give a larger scope to logic and symmetry.Abroad field there also is in which rules may, with approximately the same convenience, be settled one way or the other.Here custom tends to assert itself as the controlling force in guiding the choice of paths.Finally, when the social needs demand one settlement rather than another, there are times when we must bend symmetry, ignore history and sacrifice custom in the pursuit of other and larger ends.
From history and philosophy and custom, we pass, therefore, to the force which in our day and generation is becoming the greatest of them all, the power of social justice which finds its outlet and expression in the method of sociology.
The final cause of law is the welfare of society.The rule that misses its aim cannot permanently justify its existence."Ethical considerations can no more be excluded from the administration of justice which is the end and purpose of all civil laws than one can exclude the vital air from his room and live." 21 Logic and history and custom have their place.We will shape the law to conform to them when we may; but only within bounds.The end which the law serves will dominate them all.There is an old legend that on one occasion God prayed, and his prayer was "Be it my will that my justice be ruled by my mercy." That is a prayer which we all need to utter at times when the demon of formalism tempts the intellect with L the lure of scientific order.I do not mean, of course, that judges are commissioned to set aside existing rules at pleasure in favor of any other set of rules which they may hold to be expedient or wise.I mean that when they are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance.We are not to forget, said Sir George Jessel, in an often quoted judgment, that there is this paramount public policy, that we are not lightly to interfere with freedom of contract.22 So in this field, there may be a paramount public policy, one that will prevail over temporary inconvenience or occasional hardship, not lightly to sacrifice certainty and uniformity and order and coherence.All these elements must be considered.They are to be given such weight as sound judgment dictates.They are constituents of that social welfare which it is our business to discover.23 In a given instance we may find that they are constituents of preponderating value.In others, we may find that their value is subordinate.We must appraise them as best we can.
I have said that judges are not commissioned to make and unmake rules at pleasure in accordance with changing views of expediency or wisdom.
