Citations seem to play so much larger a role now than principle. There
was a time when the thoughtful eye of the judge rested upon the changes
of social circumstances and almost palpably saw the law arise out of
human life. Have we got to a time when the only way to change law is by
statute? The changing of law by statute seems to me like mending a
garment with a patch, whereas law should grow by the life that is in it,
not by the life that is outside of it.
I once said to a lawyer with whom I was discussing some question of
precedent, and in whose presence I was venturing to doubt the rational
validity, at any rate, of the particular precedents he cited, "After
all, isn't our object justice?" And he said, "God forbid! We should be
very much confused if we made that our standard. Our standard is to find
out what the rule has been and how the rule that has been applies to the
case that is." I should hate to think that the law was based entirely
upon "has beens." I should hate to think that the law did not derive its
impulse from looking forward rather than from looking backward, or,
rather, that it did not derive its instruction from looking about and
seeing what the circumstances of man actually are and what the impulses
of justice necessarily are.
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