The reader will perhaps wish to be told in a somewhat more direct fashion how the method of free legal decision, which is founded on such diverse scientific grounds, will work out in such a way as to preserve both its own peculiar characteristics and the necessary degree of certainty. He will wish to see what results may be expected by being shown some facts learned from actual experience.
In regard to the first of these points, it must be said that above all things every jurist must become as clear as possible in his own mind on the problem of what constitutes his peculiar function in the life of society. When he has become fully conscious of the nature of his task, he will find in that very consciousness the best guide to conduct him straight towards the clearly conceived goal. Now it cannot be repeated too often that legal science is essentially a science of action, having no possible purpose except that of finding the necessary rules for the government of certain human relations by external social sanctions. It is based on facts of social life which it aims to order and arrange in such a way that the consequences flowing from them are those which are socially desirable.
Consequently, legal science must first of all try to analyze the human facts into their ultimate elements. As it cannot master these elements without arranging them in certain general series and reducing them to certain types, analysis must necessarily be supplemented by classification, which must already show more or less clearly some definite goal. The conception of this goal will become still clearer and bring the final result into closer view, when the rule has been established which ought to govern the relations so analyzed and classified. To find this rule for the government of the facts is the peculiar work of legal science. Although the facts themselves will in part suggest the rule, yet its real origin must be sought in a superior order of ideas which can be discovered only by an effort of reasoning.
I am very far from depreciating the importance of simple observation of social facts; I do not even hesitate to give to it the first place among the indispensable elements of juridical method, without which it would be impossible even to put the problems correctly. Yet this alone could not, as has sometimes been contended, bring us to the desired goal of our science, not even if we join to it rational classification. We need also a process of reasoning which starts from an intuition supplemented by the feeling for what is just, and arrives at exact conclusions by a series of deductions under the constant guidance and control of practical common sense.
In administering the law one is obliged first of all to discover some general and abstract rule to be applied to the special combinations of concrete facts which actual life produces. In all cases the judge should therefore start from what would be the normal rule. That means he should first propose to himself the most general rule applicable to the state of facts before him as a type; he should contemplate both the conditions giving rise to the rule and the results flowing from it without regard for any unusual features or anticipation of any but the probable consequences, except in so far as these unusual features or consequences arise from the particular nature of the facts themselves. These will have to be considered in selecting the rule itself.
Moreover, we must not forget that the free decision of the judge only extends to the cases where the formal sources, be they statutes or custom, fail him. The exercise of his freedom is broad or narrow, and the results of his reasoning are more or less certain, according as he is able to base it on analogy, or on elements in the facts which suggest an established view of society, or whether in the absence of all positive support he is left altogether to his own judgment.
Even within the limited sphere so described, it does not seem to me that free scientific legal decision can create legal rules with the same latitude as that belonging to statute or custom. Without stopping to indicate all the limitations surrounding its creative capacity, it will suffice for me to point out two lines of thought which, among a good many others, seem to justify my assertion. On the one hand, some relations are governed by general principles depending, sometimes only latently, on our formal legal arrangement in so complete and exclusive a manner that there remains no opening for free legal decision without going outside of its proper functions and exceeding its province within the general conditions of social life as they actually exist. Thus it would seem to me that a court could not impose in this manner a legal incapacity (over and beyond the recognition of a natural capacity already existing) or an artificial restriction on the liberty of contract; nor could it thus create a privilege in contravention of the principle of equality before the law. Nor would it be possible to make by free legal decision, according to the methods of legal science, detailed rules such as are required for the exercise of certain rights, for instance the regulation of the manner of proving certain facts, or what is to be regarded as legal publication or notice, the forms of legal transactions, prescription, limitations, forfeitures, and many similar things. Speaking broadly, everything which constitutes the outward, and if one may say so, moldable shell of the law, is outside of the realm of free decision and must be regulated exclusively by statute or custom.