第23章

The old quantitative tests of truth did not fail in their day to serve the social needs.56 Their day has long passed.Modern juristic thought, turning in upon itself, subjecting the judicial process to introspective scrutiny, may have given us a new terminology and a new emphasis.But in truth its method is not new.It is the method of the great chancellors, who without sacrificing uniformity and certainty built up the system of equity with constant appeal to the teachings Of right reason and conscience.It is the method by which the common law has renewed its life at the hands of its great masters--the method of Mansfield and Marshall and Kent and Holmes.There have, indeed, been movements, and in our own day, to make the individual sense of justice in law as well as in morals the sole criterion of right and wrong.We are invited, in Gény's phrase, to establish a system of "juridical anarchy" at worst, or of "judicial impressionism" at best.57 The experiment, or something at least approaching it, was tried not long ago in France.

There are sponsors of a like creed among the critics of our own courts.58 The French experiment, which has become known as le phénomène Magnaud, is the subject of a chapter in the epilogue to the last edition, published in 1919, of Gény's brilliant book.59 Between 1889 and 1904, the tribunal of the first instance of Château-Thierry, following the lead of its chief, le President Magnaud, initiated a revolt against the existing order in jurisprudence.Its members became known as the good judges, " les bons juges." They seem to have asked themselves in every instance what in the circumstances before them a good man would wish to do, and to have rendered judgment accordingly.Sometimes this was done in the face of inconsistent statutes.I do not profess to know their work at first hand.Gény condemns it, and says the movement has spent its force.Whatever the merits or demerits of such impressionism may be, that is not the judicial process as we know it in our law.60 Our jurisprudence has held fast to Kant's categorical imperative, "Act on a maxim which thou canst will to be law universal." It has refused to sacrifice the larger and more inclusive good to the narrower and smaller.A contract is made.

Performance is burdensome and perhaps oppressive.If we were to consider only the individual instance, we might be ready to release the promisor.We look beyond the particular to the universal, and shape our judgment in obedience to the fundamental interest of society that contracts shall be fulfilled.There is a wide gap between the use of the individual sentiment of justice as a substitute for law, and its use as one of the tests and touchstones in construing or extending law.

I think the tone and temper in which the modern judge should set about his task are well expressed in the first article of the Swiss Civil Code of 1907, an article around which there has grown up a large body of juristic commentary."The statute," says the Swiss Code, "governs all matters within the letter or the spirit of any of its mandates.In default of an applicable statute, the judge is to pronounce judgment according to the customary law, and in default of a custom according to the rules which he would establish if he were to assume the part of a legislator.He is to draw his inspiration, however, from the solutions consecrated by the doctrine of the learned and the jurisprudence of the courts--par la doctrine et la jurisprudence." 61 There, in the final precept, is the gist of the difference between "le phénomène Magnaud," and justice according to law.The judge, even when he is free, is still not wholly free.He is not to innovate at pleasure.He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness.He is to draw his inspiration from consecrated principles.

He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.

He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." 62 Wide enough in all conscience is the field of discretion that remains.