Even to-day there exists undoubtedly this double function of the judge: he is to contribute to the creation of law, and to develop further such law as has already been formulated. The legislator himself is not even in a position to restrain his discretion arbitrarily. Limitations may be found, however, in direct and imperative provisions of the written law, or in custom. Within the bounds left to the judge by these positive rules he must exercise his personal activity. The thing for us to consider in this place is the nature of this activity as regards the subject-matters to which it extends, the precise manner in which it works, and the foundations on which it is based.
Whenever it is the business of a judge to discover what the law is in fields in which it has not yet been formulated, his functions have an appearance analogous to that of the legislator himself. Leaving aside for the present the fact that the Court intervenes only when a particular state of facts has actually arisen to which the law must be applied-by no means a negligible distinction, but one which just now is for us of secondary importance-the considerations that must guide the judge in accordance with the end to be attained are exactly the same as those which would influence the legislator. For the one as well as the other aims at promoting by an appropriate rule the ends of justice and social utility. I should not hesitate, when the formal sources are silent or insufficient, to prescribe as the general guide of the judge the following outline: he should formulate his decision in accordance with the same considerations which the legislator would have in mind if he were to prescribe rules relating to the question at issue. Yet there is one important difference between the function of the judge and that of the legislator. The latter is surrounded by no barriers preventing him from considering the circumstances in every one of its aspects, because he is called upon to establish an entirely abstract rule. The Court, on the other hand, renders his decision on a particular and actual state of facts, so that his problem becomes very concrete. According to the spirit of our judicial system, and in order to avoid becoming arbitrary, he must rid himself as far as possible of all personal influences, as well as of those which arise from the particular circumstances of the case before him, so as to base his legal decision on nothing but the objective elements constituting the case. Here is the reason why the name I have given to this function of the judge, free decision on the basis of scientific investigation, seems to me justified. It is free, because no positive outward authority compels him to decide as he does; it is scientific, because it finds its solid foundations in nothing but the objective elements which legal science must reveal to him.
What I have said of the courts, which are the official and authoritative administrators of the positive law, applies necessarily also not only to the practising attorney but to the theoretical or critical scholar interpreting the law. It is the part of the latter simply to do the preliminary work so that the judiciary may put the results into practical effect. The work of the judge determines what work the theoretical scholar is to do. The latter escapes the difficulty caused by the direct effects of the troublesome or suspicious influence of concrete cases, but the objective point of all his efforts is at bottom the adaptation of the latent rules of the law to all the data of social life.
Thus the method of legal science in this field of free research which we now have in mind must have for its goal the discovery, whenever the formal sources fail, of the objective factors to which all problems of positive law must look for their solution.