第6章

It is easy to accumulate examples of the process--of the constant checking and testing of philosophy by justice, and of justice by philosophy.Take the rule which permits recovery with compensation for defects in cases of substantial, though incomplete performance.We have often applied it for the protection of builders who in trifling details and without evil purpose have departed from their contracts.The courts had some trouble for a time, when they were deciding such cases, to square their justice with their logic.Even now, an uneasy feeling betrays itself in treatise and decision that the two fabrics do not fit.As I had occasion to say in a recent case: "Those who think more of symmetry and logic in the development of legal rules than of practical adaptation to the attainment of a just result" remain "troubled by a classification where the lines of division are so wavering and blurred." 42 I have no doubt that the inspiration of the rule is a mere sentiment of justice.

That sentiment asserting itself, we have proceeded to surround it with the halo of conformity to precedent.Some judges saw the unifying principle in the law of quasi-contracts.Others saw it in the distinction between dependent and independent promises, or between promises and conditions.

All found, however, in the end that there was a principle in the legal armory which, when taken down from the wall where it was rusting, was capable of furnishing a weapon for the fight and of hewing a path to justice.justice reacted upon logic, sentiment upon reason, by guiding the choice to be made between one logic and another.Reason in its turn reacted upon sentiment by purging it of what is arbitrary, by checking it when it might otherwise have been extravagant, by relating it to method and order and coherence and tradition.43In this conception of the method of logic or philosophy as one organon among several, I find nothing hostile to the teachings of continental jurists who would dethrone it from its place and power in systems of jurisprudence other than our own.They have combated an evil which has touched the common law only here and there, and lightly.

I do not mean that there are not fields where we have stood in need of the same lesson.In some part, however, we have been saved by the inductive process through which our case law has developed from evils and dangers inseparable from the development of law, upon the basis of the jus scriptum, by a process of deduction.44 Yet even continental jurists who emphasize the need of other methods, do not ask us to abstract from legal principles all their fructifying power.The misuse of logic or philosophy begins when its method and its ends are treated as supreme and final.They can never be banished altogether."Assuredly,"says François Gény,.45 there should be no question of banishing ratiocination and logical methods from the science of positive law." Even general principles may sometimes be followed rigorously in the deduction of their consequences."The abuse,"he says, "consists, if I do not mistake, in envisaging ideal conceptions, provisional and purely subjective in their nature, as endowed with a permanent objective reality.And this false point of view, which, to my thinking, is a vestige of the absolute realism of the middle ages, ends in confining the entire system of positive law, a priori , within a limited number of logical categories, which are predetermined in essence, immovable in basis, governed by inflexible dogmas, and thus incapable of adapting themselves to the ever varied and changing exigencies of life."In law, as in every other branch of knowledge, the truths given by induction tend to form the premises for new deductions.The lawyers and the judges of successive generations do not repeat for themselves the process of verification, any more than most of us repeat the demonstrations of the truths of astronomy or physics.A stock of juridical conceptions and formulas is developed, and we take them, so to speak, ready-made.Such fundamental conceptions as contract and possession and ownership and testament and many others are there, ready for use.How they came to be there, I do not need to inquire.I am writing, not a history of the evolution of law, but a sketch of the judicial process applied to law full grown.These fundamental conceptions once attained form the starting point from which are derived new consequences, which, at first tentative and groping, gain by reiteration a new permanence and certainty.In the end, they become accepted themselves as fundamental and axiomatic.So it is with the growth from precedent to precedent.The implications of a decision may in the beginning be equivocal.

New cases by commentary and exposition extract the essence.At last there emerges a rule or principle which becomes a datum, a point of departure, from which new lines will be run, from which new courses will be measured.

Sometimes the rule or principle is found to have been formulated too narrowly or too broadly, and has to be reframed. Sometimes it is accepted as a postulate of later reasoning, its origins are forgotten, it becomes a new stock of descent, its issue unite with other strains, and persisting permeate the law.You may call the process one of analogy or of logic or of philosophy as you please.Its essence in any event is the derivation of a consequence from a rule or a principle or a precedent which, accepted as a datum, contains implicitly within itself the germ of the conclusion.In all this, I do not use the word philosophy in any strict or formal sense.The method tapers down from the syllogism at one end to mere analogy at the other.Sometimes the extension of a precedent goes to the limit of its logic.Sometimes it does not go so far.Sometimes by a process of analogy it is carried even farther.That is a tool which no system of jurisprudence has been able to discard.46 A rule which has worked well in one field, or which, in any event, is there whether its workings have been revealed or not, is carried over into another.

Instances of such a process I group under the same heading as those where the nexus of logic is closer and more binding.47 At bottom and in their underlying motives, they are phases of the same method.They are inspired by the same yearning for consistency, for certainty, for uniformity of plan and structure.They have their roots in the constant striving of the mind for a larger and more inclusive unity, in which differences will be reconciled, and abnormalities will vanish.