expediency or his wisdom dictates and proceed along the lines that seem best to him. On the other hand the judicial lawmaker is not merely making a rule for the future. He is laying down a legal precept which will apply to the transactions of the past as well as to the future, and he is doing so immediately with reference to a controversy arising in the past.49 Hence the social interest in the general security requires that he should not have the same freedom as the legislative lawmaker. It requires that instead of finding his premises where he will or where expediency appears to him to dictate, he finds them in the authoritatively recognized legal materials or by a process recognized by the legal system. It requires that instead of proceeding along the lines that seem best to him, he proceeds by using the authoritative legal technique upon authoritative legal materials.50
Thus the proposition that a judicial decision is only evidence of the law, the doctrine that judges find the law and do not make it, are not purposeless dogmatic fictions. If they are dogmatic fictions, they do more than enable us to arrange the phenomena of the administration of justice in a convenient, logically consistent scheme. They express a sound instinct of judges and lawyers for maintaining a paramount social interest. They serve to safeguard the general security by requiring the grounds of judicial decision to be as definite as is compatible with the attainment of justice in results. They serve to make judicial action predictable so far as may be. They serve to hold down the personality of the magistrate. They constrain him to look at causes objectively and try them by reasoned development of legal materials which had taken shape prior to and independent of the cause in hand. Hence where rules are laid down for the future only, the lawmaker is given entire freedom, subject in America to a few reservations in bills of rights. Where, as in judicial lawmaking, rules are laid down for past as well as for future situations, the lawmaker is held to traditional premises or traditional lines and modes of development to the end that those who know the tradition and are experienced in the technique may be able within reasonable limits to forecast his action.
A second point of contact between law and morals is to be found in interpretation. Interpretation has been thought of as including the process of finding or making rules for new cases or reshaping them for unusual cases considered above. This is called interpretation by a dogmatic fiction because in the analytical theory of the last century the law was complete and all cases were at least covered by the logical implications of pre-existing rules or the logical content of legal principles. Austin set it off under the name of “spurious interpretation.”51 Here the contact between law and morals is obvious since the process is in substance one of lawmaking. But in what Austin called “genuine interpretation”52—search for the actual meaning of the one who prescribed a rule admittedly governing the case in hand—the final criterion, when literal meaning and context fail to yield a satisfactory construction, is found in the “intrinsic merit” of the various possible meanings.53 The court or jurist assumes that the lawmaker’s ideal and that of the tribunal or the writer are in substantial accord; that each holds to the same ideal pattern of law or ideal picture, moral, political, or social, of the end of law. But the political and the social ideals have a predominant moral element. Thus, however much the analytical theory of “genuine interpretation” may purport to exclude the moral ideas of the court, and to insure a wholly mechanical logical exposition of a logically implied content of legal precepts, two doors are left open. The court must determine whether the criteria of the literal meaning of the words and of the text read with the context yield a “satisfactory” solution.54 If the court finds they do not, it must inquire into the “intrinsic merit” of the competing interpretations. In practice “satisfactory” will almost always mean morally satisfactory. “Intrinsic merit” will always tend to mean intrinsic moral merit.55
Another point of contact is in the application of standards. Analytical jurists have liked to think of the application of legal precepts as a purely mechanical process. Such things as the margin of discretion in the application of equitable remedies, the appeal to the ethical in the maxims of equity, and the ethical element in such equitable doctrines as those with respect to hard bargains, mistake coupled with sharp practice, and the like, were distasteful to them. Partly under their influence and partly from the same spirit of the maturity of law that led to the analytical way of thinking, in the last quarter of the nineteenth century, some American courts sought to eliminate, or at least minimize the scope of these doctrines and to make equitable relief, once jurisdiction was established, as much a matter of course as damages at law.56 But this equitable or individualized application of legal precepts is called for more and more in the law of today. It is the life of administration, whether executive or judicial. The lack of power of individualization in judicial administration in the nineteenth century has contributed to a multiplication of administrative agencies and tribunals and a transfer to them of matters formerly of judicial cognizance which is sufficient testimony to the futility of the attempt in the last century to make the courts into judicial slot machines.57
In fact, the ethical element in application of law was never excluded from the actual administration of justice.58 It will suffice to note two aspects of application of law in which the ethical element has always been decisive: The application of legal standards and judicial exercise of discretion. A great and increasing part of the administration of justice is achieved through legal standards. These standards begin to come into the law in the state of infusion of morals through theories of natural law.59 They have to do with conduct and have a large moral element. The standard of due care in the law of negligence, the standard of fair competition, the standard of fair conduct of a fiduciary, the Roman standard of what good faith demands in a particular transaction, the Roman standard of use by a prudent usufructuary and of how a prudent and diligent head of a household (i.e., person sui juris) would act under the given circumstances, all involve an idea of fairness or reasonableness. Like all moral precepts they are individualized in their application. They are not applied mechanically to a set of facts looked at in the abstract. They are applied according to the circumstances of each case, and within wide limits are applied through an intuition of what is just and fair, involving a moral judgment upon the particular item of conduct in question.60
No less clearly there is a point of contact between law and morals in matters which are left to the discretion of the court. In cases where there is a margin of discretion in the application of legal precepts, as in applying or molding equitable remedies, we speak of “judicial discretion.” Here there are principles (i.e., starting points for reasoning) governing judicial action within the discretionary margin of application, although at bottom there is not a little room for personal moral judgment.61 There are many situations, however, where the course of judicial action is left to be determined wholly by the judge’s individual sense of what is right and just.62 The objections to any considerable scope for this element in the judicial process are obvious.63 It has been said it is “the law of tyrants.”64 But hard as we tried in the last century to reduce it to the vanishing point, there proved to be a point beyond which rule and mechanical application are impotent. The tendency today is to extend rather than to restrict its scope. We must find how to make it tolerable. The history of Anglo-American equity shows this may be done by developing through experience principles of exercise of discretion and recognizing that because there is no rule in the strict sense it does not follow that a tribunal must have unlimited power of doing what it chooses. It is to reach a reasoned decision in the light of those principles. As Kelsen has pointed out, when a legal precept leaves some matter to discretion, if the ground of decision lies outside of the body of authoritative guides to decision (law in the second sense) it does not lie outside of the legal order (law in the first sense).65
In the analytical account of the points of contact between law and morals the matter is put as if there were three or four restricted areas in which exceptionally such contact may take place.66 Occasionally it may happen that a case arises for which there is no applicable legal precept and the court must work one out for the case from the legal materials at hand by a certain traditional technique of analogical development of the precedents. Occasionally, too, it may happen that an authoritatively established legal precept is so ill expressed that genuine interpretation
