typical cases and a practical or
historical apportionment of the rest.

Finding the law may consist merely in laying hold of a prescribed text
of a code or statute. In that event the tribunal must proceed to
determine the meaning of the rule and to apply it. But many cases are
not so simple. More than one text is at hand which might apply; more
than one rule is potentially applicable, and the parties are
contending which shall be made the basis of a decision. In that event
the several rules must be interpreted in order that intelligent
selection may be made. Often the genuine interpretation of the
existing rules shows that none is adequate to cover the case and that
what is in effect, if not in theory, a new one must be supplied.
Attempts to foreclose this process by minute, detailed legislation
have failed signally, as, for example, in the overgrown code of civil
procedure in New York. Providing of a rule by which to decide the
cause is a necessary element in the determination of a large
proportion of the causes that come before our higher tribunals, and it
is often because a rule must be provided that the parties are not
content to abide the decision of the court of first instance.

Cases calling for genuine interpretation are relatively few and
simple. Moreover genuine interpretation and lawmaking under the guise
of interpretation run into one another. In other words, the judicial
function and the legislative function run into one another. It is the
function of the legislative organ to make laws. But from the nature of
the case it cannot make laws so complete and all-embracing that the
judicial organ will not be obliged to exercise a certain lawmaking
function also. The latter will rightly consider this a subordinate
function. It will take it to be one of supplementing, developing and
shaping given materials by means of a given technique. None the less
it is a necessary part of judicial power. Pushed to the extreme that
regards all judicial lawmaking as unconstitutional usurpation, our
political theory, a philosophical classification made over by
imperfect generalization from the British constitution as it was in
the seventeenth century, has served merely to intrench in the
professional mind the dogma of the historical school, that legislative
lawmaking is a subordinate function and exists only to supplement the
traditional element of the legal system here and there and to set the
judicial or juristic tradition no