omfortable
classes of the community were a good deal frightened. I suspect that
this fear has influenced judicial action both here and in England, yet
it is certain that it is not a conscious factor in the decisions to
which I refer. I think that something similar has led people who
no longer hope to control the legislatures to look to the courts as
expounders of the constitutions, and that in some courts new principles
have been discovered outside the bodies of those instruments, which may
be generalized into acceptance of the economic doctrines which prevailed
about fifty years ago, and a wholesale prohibition of what a tribunal
of lawyers does not think about right. I cannot but believe that if the
training of lawyers led them habitually to consider more definitely and
explicitly the social advantage on which the rule they lay down must be
justified, they sometimes would hesitate where now they are confident,
and see that really they were taking sides upon debatable and often
burning questions.

So much for the fallacy of logical form. Now let us consider the present
condition of the law as a subject for study, and the ideal toward which
it tends. We still are far from the point of view which I desire to see
reached. No one has reached it or can reach it as yet. We are only at
the beginning of a philosophical reaction, and of a reconsideration
of the worth of doctrines which for the most part still are taken for
granted without any deliberate, conscious, and systematic questioning
of their grounds. The development of our law has gone on for nearly a
thousand years, like the development of a plant, each generation taking
the inevitable next step, mind, like matter, simply obeying a law of
spontaneous growth. It is perfectly natural and right that it should
have been so. Imitation is a necessity of human nature, as has been
illustrated by a remarkable French writer, M. Tard, in an admirable
book, Les Lois de l'Imitation. Most of the things we do, we do for no
better reason than that our fathers have done them or that our neighbors
do them, and the same is true of a larger part than we suspect of what
we think. The reason is a good one, because our short life gives us no
time for a better, but it is not the best. It does not follow, because
we all are compelled to take on faith at second hand most of the rules
on which we base our action and our thought, that each of us may not try
to set some corner of his world in the