The result of following them must often be
failure and confusion from the merely logical point of view.
On the other hand, in substance the growth of the law is
legislative. And this in a deeper sense than that what the courts
declare to have always been the law is in fact new. It is
legislative in its grounds. The very considerations which judges
most rarely mention, and always with an apology, are the secret
root from which the law draws all the juices of life. I mean, of
course, considerations of what is expedient for the community
concerned. Every important principle which is developed by
litigation is in fact and at bottom the result of more or less
definitely understood views of public policy; most generally, to
be sure, [36] under our practice and traditions, the unconscious
result of instinctive preferences and inarticulate convictions,
but none the less traceable to views of public policy in the last
analysis. And as the law is administered by able and experienced
men, who know too much to sacrifice good sense to a syllogism, it
will be found that, when ancient rules maintain themselves in the
way that has been and will be shown in this book, new reasons
more fitted to the time have been found for them, and that they
gradually receive a new content, and at last a new form, from the
grounds to which they have been transplanted.
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