Now let us first take a look at the last-named factor in our method.
It is essential, for a proper understanding of the subject, to keep apart logic in the proper sense and legal technic. Logic in its proper sense has a legitimate and necessary part to play in the administration of the law whenever there is a question of discovering the true content of some expression of will, be it that of a legal command or of the intention of an individual to which the positive law gives effect. The same thing is true whenever it becomes necessary to reason out the practical consequences and scope of a legal principle derived from the nature of things and objective realities.
The function of legal technic is something quite different. Lawyers look at the complex and moving realities of social life, which it is their duty to reduce to order, and upon the varying interests involved, from a very special angle, and submit these realities to artificial processes which transform, and sometimes deform, their effective nature. Thus certain economic operations, which naturally would be variable and uncertain in their character, are cast into a firm and unchanging mold, or, as one might say, change their shape by passing through the crucible of the law. For instance, the financial operation of exchange, which in a way arises simply from the acts of the parties in interest, becomes clothed with a definite and almost rigid legal character in the form of a bill of exchange, with the conditions and effects imposed on it by positive law. In a more general way it may be said that legal technic fixes the characteristic features of those facts from which legal consequences may flow, by defining these consequences itself. Thereby it establishes, perhaps not exactly a sort of hierarchy, but at least a general scheme within which the actual facts of social life must find a place, and to which they must to some extent accommodate themselves. In so far as by these processes legal technic helps to develop and makes easier the relations of human life, or, to follow a pregnant expression used by Jhering, procures the formal conditions which make the law effective, it has a very legitimate part to play. Under existing conditions of society the creation of the means by which this technic works is the exclusive business of the legislator, or in exceptional cases of custom; but it is the duty of the courts to strengthen its functions by ingeniously harmonizing the various parts of the system of legal technic and make it function more smoothly by constantly adapting means to the end.
The function of legal technic is not limited, however, to making sure that the ultimate object of all law is attained by its processes of synthesis and simplification. The reason for this arises from the very nature of legal technic; it is the effect of the artificial character inherent in it, and of the almost inappreciable line which separates generalizations of observed facts from imagined abstractions. There is still another task before it, and in this regard the part of legal administration greatly exceeds that of legislation. By means of legal technic we may isolate ideas from realities, attempt to get abstract general notions of the component elements of the law and mold them into abstract concepts. From these again we may deduce abstract "constructions" to which the fact will have to be adapted, sometimes by main force. In another place I have spoken of the dangers which arise from these technical operations; but my consciousness of such dangers has not led me to be in favor of the complete exclusion of legal concepts and the "constructions" deduced from them. Not only do I not hesitate to say that the courts are bound to accept the formal concepts which have been positively embodied in the statutes, and to deduce from them all the consequences to which they lead, just as they would do from every other expression of the intention of the law. I go further and ascribe to the function of administering the law the full power of creating on its own account similar concepts. As I see it, the greatest usefulness of abstract concepts is found not in helping to build up a systematic theory of the law, but in this, that they may become a sure guide of the judge in applying the law to the facts, and that at the same time they have the power, if skillfully handled, of increasing the scope and fecundity of legal principles. However, while I do insist on the legitimacy of these technical operations, I also affirm that in employing them the Court should always be guided by two important considerations. On the one hand, it would absolutely be an error to believe that every legal rule must necessarily revolve around some ideal concept which gives it life and determines its scope. Quite to the contrary, I maintain as incontrovertible a priori that the strongest and most certain precepts of the law are those which spring directly from the nature of things without the intervention of some abstract concept, which in all cases cannot but deviate in some points from reality. On the other hand, while sometimes it may appear useful to have recourse to concepts and abstract "constructions" by the employment of these technical operations, the judge must never forget that these take him outside of the realm of those objective realities which alone should guide his judgment. He should guard against believing himself bound by these concepts (except where the statutes themselves adopt them) and never take them for more than scientific hypotheses, which are no doubt capable of helping him in conducting his investigations but are never to be taken as established realities. Therefore the needs of actual life must never be sacrificed to mere concepts.
These observations seem to mark pretty well the boundaries one should not exceed in logical systematization. It appears pretty clearly from them that the main support of the administration of the law must be sought in something else if its proper functioning is to be secured. Instead of relying on abstract concepts of the mind, which are in their very origin inconstant and uncertain, the Court needs to avail himself of the firm principles which only a careful investigation of the nature of things themselves can furnish.