duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as have I said."
Not only in our common law system has this conception made its way. Even in other systems where the power of judicial initiative is more closely limited by statute, a like development is in the air. Everywhere there is growing emphasis on the analogy between the function of the judge and the function of the legislator. I may instance François Gény who has developed the analogy with boldness and suggestive power.[1] "A priori," he says, "the process of research (la recherche), which is imposed upon the judge in finding the law seems to us very analogous to that incumbent on the legislator himself. Except for this circumstance, certainly not negligible, and yet of secondary importance, that the process
- ↑ Op. cit., vol. II, p. 77.
