第15章

The Method of Sociology.

The Judge as a Legislator I HAVE chosen these branches of the law merely as conspicuous illustrations of the application by the courts of the method of sociology.But the truth is that there is no branch where the method is not fruitful.Even when it does not seem to dominate, it is always in reserve.it is the arbiter between other methods, determining in the last analysis the choice of each, weighing their competing claims, setting bounds to their pretensions, balancing and moderating and harmonizing them all.Few rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end.If they do not function, they are diseased.

If they are diseased, they must not propagate their kind.Sometimes they are cut out and extirpated altogether.Sometimes they are left with the shadow of continued life, but sterilized, truncated, impotent for harm.

We get a striking illustration of the force of logical consistency, then of its gradual breaking down before the demand of practical convenience in isolated or exceptional instances, and finally of the generative force of the exceptions as a new stock, in the cases that deal with the right of a beneficiary to recover on a contract.England has been logically consistent and has refused the right of action altogether.New York and most states yielded to the demands of convenience and enforced the right of action, but at first only exceptionally and subject to many restrictions.Gradually the exceptions broadened till today they have left little of the rule.1 It survives chiefly in those cases where intention would be frustrated or convenience impaired by the extension of the right of action to others than the contracting parties.2 Rules derived by a process of logical deduction from pre-established conceptions of contract and obligation have broken down before the slow and steady and erosive action of utility and justice.3We see the same process at work in other fields.We no longer interpret contracts with meticulous adherence to the letter when in conflict with the spirit.We read covenants into them by implication when we find them "instinct with an obligation" imperfectly expressed."The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal." 4 Perhaps it is in the field of procedure that we have witnessed the chief changes; though greater ones must yet be wrought.Indictments and civil pleadings are viewed with indulgent eyes.Rulings upon questions of evidence are held with increasing frequency to come within the discretion of the judge presiding at the trial.Errors are no longer ground for the upsetting of judgments with the ensuing horror of new trials, unless the appellate court is satisfied that they have affected the result.Legislation has sometimes been necessary to free us from the old fetters.Sometimes the conservatism of judges has threatened for an interval to rob the legislation of its efficacy.5 This danger was disclosed in the attitude of the courts toward the reforms embodied in codes of practice, in the days when they were first enacted.6 Precedents established in those times exert an unhappy influence even now.

None the less, the tendency today is in the direction of a growing liberalism.

The new spirit has made its way gradually; and its progress, unnoticed step by step, is visible in retrospect as we look back upon the distance traversed.The old forms remain, but they are filled with a new content.

We are getting away from what Ehrlich calls "die spielerische und die mathematische Entscheidung," 7 the conception of a lawsuit either as a mathematical problem or as a sportsman's game.Our own Wigmore has done much to make that conception out of date.8 We are thinking of the end which the law serves, and fitting its rules to the task of service.

This conception of the end of the law as determining the direction of its growth, which was Jhering's great contribution to the theory of jurisprudence, 9 finds its organon, its instrument, in the method of sociology.Not the origin, but the goal, is the main thing.There can be no wisdom in the choice of a path unless we know where it will lead.The teleological conception of his function must be ever in the judge's mind.This means, of course, that the juristic philosophy of the common law is at bottom the philosophy of pragmatism.10 Its truth is relative, not absolute.The rule that functions well produces a title deed to recognition.Only in determining how it functions we must not view it too narrowly.We must not sacrifice the general to the particular.We must not throw to the winds the advantages of consistency and uniformity to do justice in the instance.11 We must keep within those interstitial limits which precedent and custom and the long and silent and almost indefinable practice of other judges through the centuries of the common law have set to judge-made innovations.