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." 37 "On the one hand," says Gény, 38 "we are to interrogate reason and conscience, to discover in our inmost nature, the very basis of justice; on the other, we are to address ourselves to social phenomena, to ascertain the laws of their harmony and the principles of order which they exact." And again: 39 "Justice and general utility, such will be the two objectives that will direct our course."All departments of the law have been touched and elevated by this spirit.
In some, however, the method of sociology works in harmony with the method of philosophy or of evolution or of tradition.Those, therefore, are the fields where logic and coherence and consistency must still be sought as ends.In others, it seems to displace the methods that compete with it.
Those are the fields where the virtues of consistency must yield within those interstitial limits where judicial power moves.In a sense it is true that we are applying the method of sociology when we pursue logic and coherence and consistency as the greater social values.I am concerned for the moment with the fields in which the method is in antagonism to others rather than with those in which their action is in unison.Accurate division is, of course, impossible.A few broad areas may, however, be roughly marked as those in which the method of sociology has fruitful application.
Let me seek some illustrations of its workings.I will look for them first of all in the field of constitutional law, where the primacy of this method is, I think, undoubted, then in certain branches of private law where public policy, having created rules, must have like capacity to alter them, and finally in other fields where the method, though less insistent and pervasive, stands ever in the background, and emerges to the front when technicality or logic or tradition may seem to press their claims unduly.
I speak first of the constitution, and in particular of the great immunities with which it surrounds the individual.No one shall be deprived of liberty without due process of law.Here is a concept of the greatest generality.
Yet it is put before the courts en bloc.Liberty is not defined.
Its limits are not mapped and charted.How shall they be known? Does liberty mean the same thing for successive generations? May restraints that were arbitrary yesterday be useful and rational and therefore lawful today? May restraints that are arbitrary today become useful and rational and therefore lawful tomorrow? I have no doubt that the answer to these questions must be yes.
There were times in our judicial history when the answer might have been no.Liberty was conceived of at first as something static and absolute.
The Declaration of Independence had enshrined it.The blood of Revolution had sanctified it.The political philosophy of Rousseau and of Locke and later of Herbert Spencer and of the Manchester school of economists had dignified and rationalized it.Laissez faire was not only a counsel of caution which statesmen would do well to heed.It was a categorical imperative which statesmen, as well as judges, must obey.The "nineteenth century theory" was "one of eternal legal conceptions involved in the very idea of justice and containing potentially an exact rule for every case to be reached by an absolute process of logical deduction." 40 The century had not closed, however, before a new political philosophy became reflected in the work of statesmen and ultimately in the decrees of courts.The transition is interestingly described by Dicey in his "Law and Opinion in England." 41 "The movement from individualistic liberalism to unsystematic collectivism" had brought changes in the social order which carried with them the need of a new formulation of fundamental rights and duties.In our country, the need did not assert itself so soon.Courts still spoke in the phrases of a philosophy that had served its day.42 Gradually, however, though not without frequent protest and intermittent movements backward, a new conception of the significance of constitutional limitations in the domain of individual liberty, emerged to recognition and to dominance.
Judge Hough, in an interesting address, finds the dawn of the new epoch in 1883, when Hurtado v.California, 110 U.S.516, was argued.43 If the new epoch had then dawned, it was still obscured by fog and cloud.Scattered rays of light may have heralded the coming day.They were not enough to blaze the path.
