Page:Cardozo-Nature-Of-The-Judicial-Process.pdf/115

This page has been proofread, but needs to be validated.

THE JUDGE AS A LEGISLATOR

délais, des formalités, des règles de publicité."^[1] None the less, within the confides of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom.

115

↑ "He may intervene only to supplement the formal authorities, and even in that field there are limits to his discretion in establishing rules of law. He may neither restrict the scope of the general principles of our juridical organization, explicitly implicitly sanctioned, may he lay down detailed regulations governing the exercise of giver rights, by introducing delays, formalities, or rules of publicity."—Charmont, supra, transl. in 7 Modern Legal Philosophy Scries, p. 120, sec. 91. Cf. Jhering, "Law as a Means to an End" (5 Modern Legal Philosophy Series; Introduction by W. M. Geldart, p. xlvi): "The purposes of law are embodied in legal conceptions which must develop in independence and cannot at every step be called upon to conform to particular needs. Otherwise system and certainty would be unattainable. But this autonomy of law, if it were only because of excess or defects of logic, will lead to a divergence between law and the needs of life, which from time to time calls for correction. . . . How far if at all the needful changes can or ought to be carried out by judicial decisions of the development of legal theory, and how far the intervention of the legislator will be called for, is a matter that will vary from one legal territory to another according to the accepted traditions as the binding force of precedents, the character of the enacted law, and the wider of narrower liberty of judicial interpretation.”

[1] "He may intervene only to supplement the formal authorities, and even in that field there are limits to his discretion in establishing rules of law. He may neither restrict the scope of the general principles of our juridical organization, explicitly implicitly sanctioned, may he lay down detailed regulations governing the exercise of giver rights, by introducing delays, formalities, or rules of publicity."—Charmont, supra, transl. in 7 Modern Legal Philosophy Scries, p. 120, sec. 91. Cf. Jhering, "Law as a Means to an End" (5 Modern Legal Philosophy Series; Introduction by W. M. Geldart, p. xlvi): "The purposes of law are embodied in legal conceptions which must develop in independence and cannot at every step be called upon to conform to particular needs. Otherwise system and certainty would be unattainable. But this autonomy of law, if it were only because of excess or defects of logic, will lead to a divergence between law and the needs of life, which from time to time calls for correction. . . . How far if at all the needful changes can or ought to be carried out by judicial decisions of the development of legal theory, and how far the intervention of the legislator will be called for, is a matter that will vary from one legal territory to another according to the accepted traditions as the binding force of precedents, the character of the enacted law, and the wider of narrower liberty of judicial interpretation.”

[1]