Thus the courts are led, without exceeding the well-known limits of private law, whenever they have no formal guidance furnished by statute or established custom, to search for light among the social elements of every kind that are the living force behind the facts they deal with, if they wish to proceed with any assurance of being right.
The same thing would be even more evident if we were to study certain other problems that cannot be solved along the traditional lines and bring into play even more directly certain moral and economic interests which our written laws do but very little to balance against each other. Such problems may be found in connection with a great variety of subjects. Thus there are the rights inherent in the personality of the individual man and the consequences flowing therefrom, among which may be mentioned the rights of intellectual property. Then there is the problem of a special legal treatment of commercial rights and their proper distinction from ordinary civil transactions. Again, we may mention the question of the legitimacy and legal effects of understandings having for their purpose the regulation of industrial production; the very complex questions in mining law, growing out of the relations between the surface and the underground workings, and many other similar matters. These questions cannot all be solved, and our positive law regarding these subjects be settled, except by means of attentive observation of social facts and a reliance upon well-ascertained scientific data.
Here I must make an end of my observations. I believe that what has been said will suffice to show the fecundity and to explain the working of this necessary part of juridical method, which I have called "free decision on a scientific basis."