sistency and certainty, we must apply those rules when they are not plainly unreasonable and inconvenient to all cases which arise; and we are not at liberty to reject them and to abandon all analogy to them in those in which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised,"[1] This does not mean that there are not gaps, yet unfilled, within which judgment moves untrammeled. Mr. Justice Holmes has summed it up in one of his flashing epigrams: "I recognize without hesitation that judges must and do legislate, but they do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say, I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court."[2] This conception of the legislative power of a judge as operating between spaces is akin to the theory of "gaps in the law" familiar
- ↑ Sir James Parke, afterwards Lord Wensleydale, in Mirehouse v. Russell, 1 Cl. & F. 527, 546, quoted by Ehrlich, "Grundlegung der Soziologie des Rechts” [1913], p. 234; cf. Pollock, “Jurisprudence," p. 323.
- ↑ Southern Pacific Co. v. Jensen, 244 U. S. 205, 221.
