THE NATURE OF THE
JUDICIAL PROCESS
Lecture IV. Adherence to Precedent. The Subconscious Element in the Judicial Process. Conclusion
THE system of law-making by judicial decisions which supply the rule for transactions closed before the decision was announced, would indeed be intolerable in its hardship and oppression if natural law, in the sense in which I have used the term, did not supply the main rule of judgment to the judge when precedent and custom fail or are displaced. Acquiescence in such a method has its basis in the belief that when the law has left the situation uncovered by any pre-existing rule, there is nothing to do except to have some impartial arbiter declare what fair and reasonable men, mindful of the habits of life of the community, and of the standards of justice and fair dealing prevalent among them, ought in such circumstances to do, with no rules except those of custom and con-
