第2章

There are hardships and wrongs to be mitigated if not avoided.Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had none the less a real and ascertainable pre-existence in the legislator's mind.The process is, indeed, that at times , but it is often something more.The ascertainment of intention may be the least of a judge's troubles in ascribing meaning to a statute."The fact is,"says Gray in his lectures on the "Nature and Sources of the Law," 3 "that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present." 4 So Brütt: 5 "One weighty task of the system of the application of law consists then in this, to make more profound the discovery of the latent meaning of positive law.Much more important, however, is the second task which the system serves, namely

the filling of the gaps which are found in every positive law in greater or less measure." You may call this process legislation, if you will.In any event, no system of jus scriptum has been able to escape the need of it.Today a great school of continental jurists is pleading for a still wider freedom of adaptation and construction.The statute, they say, is often fragmentary and ill-considered and unjust.The judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision?libre recherche scientifique." That is the view of Gény and Ehrlich and Gmelin and others.6 Courts are to "search for light among the social elements of every kind that are the living force behind the facts they deal with." 7 The power thus put in their hands is great, and subject, like all power, to abuse; but we are not to flinch from granting it.In the long run "there is no guaranty of justice," says Ehrlich, 8 "except the personality of the judge." 9 The same problems of method, the same contrasts between the letter and the spirit, are living problems in our own land and law.Above all in the field of constitutional law, the method of free decision has become, I think, the dominant one today.The great generalities of the constitution have a content and a significance that vary from age to age.The method of free decision sees through the transitory particulars and reaches what is permanent behind them.Interpretation, thus enlarged, becomes more than the ascertainment of the meaning and intent of lawmakers whose collective will has been declared.

It supplements the declaration, and fills the vacant spaces, by the same processes and methods that have built up the customary law.Codes and other statutes may threaten the judicial function with repression and disuse and atrophy.

The function flourishes and persists by virtue of the human need to which it steadfastly responds.Justinian's prohibition of any commentary on the product of his codifiers is remembered only for its futility.10I will dwell no further for the moment upon the significance of constitution and statute as sources of the law.The work of a judge in interpreting and developing them has indeed its problems and its difficulties, but they are problems and difficulties not different in kind or measure from those besetting him in other fields.I think they can be better studied when those fields have been explored.Sometimes the rule of constitution or of statute is clear, and then the difficulties vanish.Even when they are present, they lack at times some of that element of mystery which accompanies creative energy.We reach the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case.He is the "living oracle of the law" in Blackstone's vivid phrase.Looking at Sir Oracle in action, viewing his work in the dry light of realism, how does he set about his task?

The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books.I do not mean that precedents are ultimate sources of the law, supplying the sole equipment that is needed for the legal armory, the sole tools, to borrow Maitland's phrase, 11 "in the legal smithy." Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn., 12 None the less, in a system so highly developed as our own, precedents have so covered the ground that they fix the point of departure from which the labor of the judge begins.Almost invariably, his first step is to examine and compare them.If they are plain and to the point, there may be need of nothing more.Stare decisis is at least the everyday working rule of our law.I shall have something to say later about the propriety of relaxing the rule in exceptional conditions.