If the conception of judicial functions outlined above is in line with what Fuchs is aiming at, as I do not doubt that it is, although he may not yet have expressed it in this form, then I do not hesitate to declare that the machinery, this point of view is not understood, and instead the court tries to discover what the general popular custom is regarding a subject on which there is no such popular custom.
results of this reasoning point the way toward a complete revolution in the theoretical notions now prevailing regarding the judicial function in civil actions, and consequently in the practical administration of the law.122
If the views here maintained are correct, it is time we should get rid of the attempts, now shown to be fruitless, to deduce the decision dialectically from the formulated rule. The place of these attempts will be taken by proof that the decision is within the formulated rule, but this proof would become the second step, while at present the deduction from the rule is the first step in the mental process. Instead of that, the grounds of decision will hereafter prove (and one is tempted to say that this involves a shifting of the burden of proof which now rests on the writer of the decision) first of all that the distribution of property and rights, as contained in the judgments, is in accordance with right and justice. It is to be just in this sense also that the decision, in case the matter to be decided is a type of similar cases, must be fit to constitute a rule for future cases of the same kind. In this view of the matter, however, the statute or rule retains its authority to this extent that the judge must show that what he wills and commands is within the limits of the positive statute, that the rules applying to the matter do not necessarily require the opposite decision, and that the decision does not, accordingly, violate the law within the meaning of section 549, Code of Civil Procedure.