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THE JUDGE AS A LEGISLATOR

and those of reason and good conscience. I suppose it is true in a certain sense that this duty was never doubted.[1] One feels at times, however, that it was obscured by the analytical jurists, who, in stressing verbal niceties of definition, made a corresponding sacrifice of emphasis upon the deeper and finer realities of ends and aims and functions. The constant insistence that morality and justice are not law, has tended to breed distrust and contempt of law as something to which morality and justice are not merely alien, but hostile. The new development of “naturrecht” may be pardoned infelicities of phrase, if it introduces us to new felicities of methods and ideals. Not for us the barren logomachy that dwells upon the contrasts between law and justice, and forgets their deeper harmonies. For us rather the trumpet call of the French “code civil”:[2] "Le juge, qui refusera de juger, sous prétexte du silence, de l'obscurité

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  1. See Gray, supra, p. 286, secs. 644, 645.
  2. Art. 4; Gray, supra, sec. 642; Gény, op. cit., vol. II, p. 75, sec. 155; Gnaeus Flavius, "Der Kampf um die Rechtswissenschaft," p. 14.