mainly the language of logic. And the logical
method and form flatter that longing for certainty and for repose which
is in every human mind. But certainty generally is illusion, and repose
is not the destiny of man. Behind the logical form lies a judgment as
to the relative worth and importance of competing legislative grounds,
often an inarticulate and unconscious judgment, it is true, and yet the
very root and nerve of the whole proceeding. You can give any conclusion
a logical form. You always can imply a condition in a contract. But why
do you imply it? It is because of some belief as to the practice of the
community or of a class, or because of some opinion as to policy, or,
in short, because of some attitude of yours upon a matter not capable
of exact quantitative measurement, and therefore not capable of founding
exact logical conclusions. Such matters really are battle grounds where
the means do not exist for the determinations that shall be good for all
time, and where the decision can do no more than embody the preference
of a given body in a given time and place. We do not realize how large
a part of our law is open to reconsideration upon a slight change in the
habit of the public mind. No concrete proposition is self evident, no
matter how ready we may be to accept it, not even Mr. Herbert Spencer's
"Every man has a right to do what he wills, provided he interferes not
with a like right on the part of his neighbors."

Why is a false and injurious statement privileged, if it is made
honestly in giving information about a servant? It is because it has
been thought more important that information should be given freely,
than that a man should be protected from what under other circumstances
would be an actionable wrong. Why is a man at liberty to set up a
business which he knows will ruin his neighborhood? It is because
the public good is supposed to be best subserved by free competition.
Obviously such judgments of relative importance may vary in different
times and places. Why does a judge instruct a jury that an employer is
not liable to an employee for an injury received in the course of his
employment unless he is negligent, and why do the jury generally find
for the plaintiff if the case is allowed to go to them? It is because
the traditional policy of our law is to confine liability to cases where
a prudent man might have foreseen the injury, or at least the danger,
while the inclination of a very large