But hitherto this process has been largely unconscious. It is
important, on that account, to bring to mind what the actual
course of events has been. If it were only to insist on a more
conscious recognition of the legislative function of the courts,
as just explained, it would be useful, as we shall see more
clearly further on. /1/
What has been said will explain the failure of all theories which
consider the law only from its formal side; whether they attempt
to deduce the corpus from a priori postulates, or fall into the
humbler error of supposing the science of the law to reside in
the elegantia juris, or logical cohesion of part with part. The
truth is, that the law always approaching, and never reaching,
consistency. It is forever adopting new principles from life at
one end, and it always retains old ones from history at the
other, which have not yet been absorbed or sloughed off. It
will become entirely consistent only when it ceases to grow.
The study upon which we have been engaged is necessary both for
the knowledge and for the revision of the law. [37] However much
we may codify the law into a series of seemingly self-sufficient
propositions, those propositions will be but a phase in a
continuous growth.
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