tion of the merits of the actual controversy must yield to the need of detailed formulation of a precedent that will not embarrass future decision, or careful formulation must give way to the demand for study of the merits of the case in hand. In the event, too often both these things happen and the case itself is not as well considered as the court could wish, while much is said in deciding it which must be re-examined as well as may be when cited to the court in other controversies.

In another respect these two sides of the judicial function in Anglo-American law, the function of deciding the controversy and the function of declaring the law for other controversies, have a reciprocal influence. On the one hand, as the saying is, hard cases make bad law. On the other hand, regard for the stability of the legal order inclines courts to be callous toward unfortunate results in particular cases. And if a compromise results, as like as not it neither gives a just decision between the parties nor a practicable instrument of justice for the future.

Our reports are full of illustrations of this reciprocal influence of the deciding and the declaring function. More than one general rule, more than one doctrine has been determined or has been directed into a certain course by the hard circumstances of the particular case that first called upon a common-law court to state it or to fix its limits. To put but two instances of arbitrary doctrines with which our case law has since waged a long struggle, consider Winterbottom v. Wright, which seemed to establish that the general principle of liability for an active course of conduct, carried on without due care under the circumstances, did not apply to a manufacturer or dealer who negligently put upon the market an article containing an unknown hidden defect, whereby the ultimate purchaser was injured; or Thorogood v. Bryan, which, for a time, set up an artificial conception of imputed negligence. In each case, when we look narrowly at the cause presented to the court which established the doctrine, we discover that there is an element moving behind the logical scene. In each case we struggled painfully for more than half a century to unshackle the law from these decisions and their consequences, and in more than one jurisdiction the process is far from achieved. On the other hand quite as many cases may be found where strong judges have said, in effect: The result is unfortunate. in this particular case, but we must apply the appointed legal precept or the logical consequences of the applicable precedent, be the result

210 M. & W. 109 (1842).

28 C. B. 115 (1849).

what it may. When they reason thus often they not merely sacrifice the interests of the parties to the particular litigation, but they extend the potential application of the precept calling for such a result and threaten an ascending series of like sacrifices until the whole has to be overturned.

One cannot understand American case law without bearing in mind the disturbing influence of the facts of particular cases upon the general rule. Nor can he understand American judicial decision without bearing in mind the disturbing effect of the exigencies of our doctrine of precedents upon the disposition of particular cases. At one moment courts are tempted to modify a general rule with reference to appealing circumstances of one case. The next moment fear of impairing a settled rule or of unsettling it by analogy will tempt them to ignore appealing circumstances of another case. If we actually set as much store by single decisions as we purport to do in legal theory, the path of the law would lie in a labyrinth. In truth, our practice has learned to make large allowances for both of these features of decision which are inseparable from a judge-made customary law. The tables of cases distinguished and cases overruled tell a significant story. Out of the struggle to decide the particular cause justly and yet according to law, while at the same time furnishing, or contributing to furnish, a guide for judicial decision hereafter, in time there comes a logically sound and practically workable principle derived from judicial experience of many causes. In the meantime there has been sacrifice of particular litigants and sacrifice of certainty and order in the law, as decision has fluctuated between regard to the one or to the other of the two sides of the judge's duty.

It may be observed in passing that the foregoing considerations explain what American lawyers find so hard to understand, namely, how civil-law tribunals, which decide the particular case without settling or attempting to settle any general point of law, merely determining that controversy for those parties on general legal grounds found for that case, can act on such a theory consistently with the general security. In fact, their decisions are much more consistent and ours are much less consistent than they appear respectively in theory. Probably just about the same degree of certainty is attained in practice in each system, for if our results were as rigid or theirs as loose as the respective theories taken at their face value indicate, neither system would be tolerable under the conditions of today. Permanent judicial tribunals manned by trained lawyers are sure to follow their own decisions and the decisions of other like tribunals to the extent of being guided by experience and

adhering to precepts that have approved themselves in experience. Tribunals set up to administer justice are no less sure to seek and to achieve just results between the parties despite theories that call upon them to subordinate such results to formulation of general rules on the basis of the facts of the cases before them.

Throughout the world and in all departments of intellectual activity there is a demand for individualization. Eighteenth-century natural law of thought of the abstract individual man in a perfect state and of his ideal qualities and ideal conduct in such a state. Nineteenth-century metaphysical individualism thought of the rights of the abstract individual man and the deductions therefrom. It thought of "the individual," not of individuals, and in its desire to uphold the rights of the individual in the abstract, often sacrificed needlessly the claims of concrete individuals. Recognition of the social interest in the individual human life is making for a new attitude in the application of law. But this only goes along with a like movement in morals. The eighteenth century knew of universal natural moral principles for the abstract man. Later we had common sense theories of principles applicable to the statistical average man. Later still, under the influence of Darwin, we had theories of principles applicable to man as a species, with resultant belief that all human beings, without regard to race, sex. condition or age, must conform to some norm or standard. Today we recognize that the moral judgments pronounced on such bases were too often empty and that we have to deal not with "the individual" but with separate and distinct individual human souls.

Treatment of the individual human unit has become the quest in medicine also. At one time the physician treated the abstract disease. Aristotle speaks as if treatment of disease by written formulas prescribed in advance for each malady, and administration of justice. by written formulas, laid down in advance for each species of wrong, were essentially like processes. Later the physician began to think in terms of organs-but again as if they were in vacuo. "Man seemed to the analytical pathologist of the last century," says Dr. Southard, "a heap of viscera in which systems, such as digestive, muscular, nervous, respiratory and excretory, were to be found." As they had treated rheumatism as an abstract entity, now their treated the heart or the liver or the kidneys "taken as separately subject to disorder." Today in contrast they seek to treat the individual concrete man and recognize that abstract conceptions and analyses are but rationalizings and orderings of knowledge acquired by experience whereby that knowledge may be retained and developed and

applied to the treatment of the concrete human being with all his individual peculiarities. The parallel of legal treatment and medical treatment is not complete because the judge must bear in mind the effect of his treatment of a particular cause upon judicial treatment of other causes, while the physician may treat each case as wholly unique. But there is none the less a significant parallel for our understanding of one side of the judicial function. It is no more possible to treat negligence in the abstract than rheumatism in the abstract. It is no more possible to isolate and standardize types of controversy out of their concrete setting and treat all controversies solely on this basis than it was to treat "the heart" or "the liver" or "the kidneys" apart from the actual man whose heart or liver or kidneys were not operating as they should. Analyses and abstract conceptions that serve us well in the legal securing of interests of substance, where cases are alike and the economic order admits of no individualization, are vain as anything more than organizings and rationalizings of experience when applied to the individual human life.

Insisting, then, that the decision of a case under the AngloAmerican legal system involves both a process of achieving a just result between the parties to that case on grounds and by a process provided by law, and also a duty, peculiar to our system, of so deciding that the decision or the grounds on which it proceeds may be a ground of decision in future cases, let us look into the elements of the process and the nature and mode of performance of the duty as they are and as they may be.

Supposing the facts to have been ascertained, decision of a controversy according to law involves (1) selection of the legal material on which to ground the decision, or as we commonly say, finding the law; (2) development of the grounds of decision from the material selected, or interpretation in the stricter sense of that term: (3) application of the abstract grounds of decision to the facts of the case. The first may consist merely in laying hold of a prescribed text of code or statute, or of a definite, prescribed, traditional rule; in which case it remains only to determine the meaning of the legal precept. with reference to the state of facts in hand, and to apply it to those facts. It is the strength of judicial administration of justice today that in the general run of causes that have to do with our economic life this is all that is called for, or so nearly all, that the main course of judicial decision may be predicted with substantial accuracy. But it happens frequently that the first process involves choice among competing texts or choice from among competing analogies so that the texts or rules must be interpreted—that is,

must be developed tentatively with reference to the facts before the court-in order that intelligent selection may be made. Often such interpretation shows that no existing rule is adequate to a just decision and it becomes necessary to formulate the ground of decision for the given facts for the first time. The proposition so formulated may, as with us, or may not, as with the civilian, become binding for like cases in the future. In any event this process has gone on and still goes on in all systems of law, no matter what their form, and no matter how completely in their juristic theory they limit the function of adjudication to mechanical application of authoritatively given precepts.

All three of the steps outlined above are commonly confused under the name of interpretation. This is partly because in primitive times, when the law was taken to be god-given and unchangeable, the most that might be permitted to human magistrates was to interpret the sacred text. Partly also it is because the Middle Ages received the Corpus Juris as an authoritative text under the influence of an academic theory that gave it statutory binding force in Western Europe. It followed that jurists could do no more than interpret the text. Partly it is because in our stage of strict law we conceived of an immemorial common custom of England that could only be developed by logical discovery of and deduction from the principles. which it presupposed. Chiefly, perhaps, it is due to the dogma of separation of powers, which refers lawmaking exclusively to the legislature and would limit the courts to interpretation and application. The analytical jurists first pointed out that finding a new rule and interpreting an existing rule were distinct processes, and Austin distinguished them as spurious interpretation and genuine interpretation respectively, since his belief in the possibility of a complete body of enacted rules, sufficient for every cause, led him to regard the former as out of place in modern law. Indeed he was quite right in insisting that spurious interpretation as a fiction was wholly out of place in legal systems of today. But experience has shown what reason ought to tell us, that this fiction grew up to cover a real need in the judicial administration of justice, and that the providing of a rule by which to decide the cause, or at least the reshaping of one which is inadequate in its given form, is a necessary element in the determination of all but the simplest controversies. More recently the growing insistence upon the importance of reasonable and just solution of the individual controversy has led jurists to distinguish application of legal precepts to particular cases from the more general

C.B.R.-VOL. II.-29