There is in truth nothing revolutionary or even novel in this view of the judicial function.[1] It is the way that courts have gone about their business for centuries in the development of the common law. The difference from age to age is not so much in the recognition of the need that
law shall conform itself to an end. It is rather in the nature of the end to which there has been need to conform. There have been periods when uniformity, even rigidity, the elimination of the personal element, were felt to be the paramount needs.[2] By a sort of paradox, the end was best served by disregarding it and thinking only of the means. Gradually the need of a more flexible system asserted itself. Often the gap between the old rule and the new was bridged by the pious fraud of a fiction.[3] The thing which concerns us here is that it was bridged whenever the
- ↑ Cf. Berolzheimer, 9 Modern Legal Philosophy Series, pp. 167, 168.
- ↑ Flavius, supra, p. 49; 2 Pollock and Maitland, "History of English Law," p. 561.
- ↑ Smith, "Surviving Fictions," 27 Yale L. J. 147,317; Ehrlich, supra, pp. 227, 228; Saleilles, "De la Personnalité Juridique," p. 382.
