From the point we have now reached, so wide a field and such far-off horizons stretch out before us that we cannot possibly, in this cursory sketch, deal with all the detail; so I find myself constrained to limit myself to outlining a few characteristics of the subject. To study its objective realities in a satisfactory fashion we should have to descend to the very roots of the constitution of humanity and discover the ultimate foundations of the ends for which it exists. Then we should have to return to the phenomena which form the essential structure and nourish the continuous life current of society.
No doubt we should not blind ourselves to the fact that an examination of all these great problems which form the natural field for a broad philosophy of the law is for. the science of positive law also of capital importance; and I propose to defend myself strenuously against any charge of yielding to the naturalistic or agnostic tendencies that are now so fashionable, as I know very well. Personally, however, I am of the opinion that these tendencies are irreconcilable with the true scientific spirit, and fatal to its effective application to actual practice.
Yet it will have to suffice, provisionally at least (and with the reservation that I may come back to this whole side of my subject in a larger manner and in another study), for our present purposes to accept the ideas of common sense and common opinion regarding the nature of our social organization and to see what help we can get for our development of private law from a careful investigation of the conditions of human life and a judicious employment of our own human nature.
The question is, therefore: How can the administra- tion of positive law, when the Court is left to itself without help from statute or custom, deal with objective data so as to satisfy the requirements of life without incurring the reproach of being arbitrary, and how should it proceed?
Before everything else I should get rid of an idea which under the social and economic conditions of our epoch affords many temptations. This idea is the underlying conception of the theory upheld by the Historical School in the various more or less definite forms it has assumed in the minds of. a number of eminent thinkers. It is difficult to escape its influence altogether, and yet it seems to me as if it ought to be entirely banished from all good legal method. That is the idea that public opinion, representing the general feeling, more or less conscious, of the people interested, can legitimately suggest to the Court the solutions of juridical problems which he is seeking. Aside from the almost insurmountable difficulty of determining in a convincing manner what the state of public opinion may be regarding any given legal question, I believe that the common judgment, as long as it has not been transformed into an actual custom, ought not to be held to have authority to impose itself on the courts for the solution of legal problems. Even in the legislative sphere it seems to me very doubtful whether those intrusted with the duty of establishing general legal rules ought to be guided principally by public opinion, which is always unstable and very little sure of itself. In any case, however, where we are dealing with the administration of law supposed to be already in existence, I do not see what serious reason could be given for basing decisions on the recognized influence of general feeling regarding the matter. I do not intend to say by any means that the Court should absolutely refuse to consider public opinion. In so far as it is itself a social fact which must be taken into account, it cannot fail to demand his attention. What I mean to insist upon is that no matter how firmly settled public opinion may seem to be, it must not be allowed to determine the judgment of the Court, nor to serve him as a test showing what the law is, for the simple reason that it cannot pretend to be proof of the truth regarding existing conditions, and the only thing to discover and apply practically is that truth.
Thus the Court will have to rely upon himself and find no guide except the nature of things themselves. That nature of things, fertilized and developed by systematic logic, will be the subject-matter of his investigations.