Here is where the balancing of interests by the judge comes to his aid. This is no imaginative thing but a substantial reality. For the things to be weighed, the material interests, exist and are easily understood if one's mind is directed toward them. This balancing of interests will furnish the solid basis for the subjective sense of justice that is to guide the will. The balancing itself is in turn, to a great extent, aided by the general manner in which the business world looks upon the subject. In those cases, however, where the business world has not yet formed a general opinion upon a subject, it will be the function of the judge to create such an opinion and to give it the form he would give it if he were acting as legislator.121
120 We do not fail to see that in the case of a very simple state of facts there is no room for discretion as long as the court remains faithful to the words of the statute in the measure advocated in the text.
121 In a number of decisions of the Imperial Court, notably in the well-known decision of Nov. 2, 1907, regarding the retention of title in The subjective sense of justice will, accordingly, find substantial support in the actual rights and interests of parties in the habits and opinions of the business world, and the needs of human intercourse. The courts themselves will concede that much greater authority should be attributed to a sense of justice supported by these material factors than they have ventured to do in the past. They will feel at liberty to find their proper functions in something else than an anxious search for legal principles supposed to be concealed in the facts of the case.
The whole of the judicial function has accordingly been shifted. From the standpoint we contend for it appears like the following: The will of the State, expressed in decision and judgment, is to bring about a just determination by means of the subjective sense of justice inherent in the judge, guided by an effective] weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question. The determination should under all circumstances be in harmony with the requirements of good faith in business intercourse and the needs of practical life, unless a positive statute prevents it; and in weighing conflicting interests the interest that is better founded in reason and more worthy of protection should be helped to achieve victory.