surface of the law reports,
the process reveals itself under the name of "implication" or in the
guise of two lines of decisions of the same tribunal upon the same
point from which it may choose at will, or in the form of what have
been termed "soft spots" in the law--spots where the lines are so
drawn by the adjudicated cases that the court may go either way as the
ethical exigencies of the special circumstances of the case in hand
may require, with no apparent transgression of what purport to be hard
and fast rules. Such has been the result of attempts to exclude the
administrative element in adjudication. In theory there is no such
thing except with respect to equitable remedies, where it exists for
historical reasons. In practice there is a great deal of it, and that
in a form which is unhappily destructive of certainty and uniformity.
Necessary as it is, the method by which we attain a needed
individualization is injurious to respect for law. If the courts do
not respect the law, who will? There is no exclusive cause of the
current American attitude toward the law. But judicial evasion and
warping of the law, in order to secure in practice a freedom of
judicial action not conceded in theory, is certainly one cause. We
need a theory which recognizes the administrative element as a
legitimate part of the judicial function and insists that
individualization in the application of legal precepts is no less
important than the contents of those precepts themselves.

Three theories of application of law obtain in the legal science of
today. The theory which has the largest following among practitioners
and in dogmatic exposition of the law is analytical. It assumes a
complete body of law with no gaps and no antinomies, given authority
by the state at one stroke and so to be treated as if every item was
of the same date as every other. If the law is in the form of a code,
its adherents apply the canons of genuine interpretation and ask what
the several code provisions mean as they stand, looked at logically
rather than historically. They endeavor to find the pre-appointed code
pigeonhole for each concrete case, to put the case in hand into it by
a purely logical process and to formulate the result in a judgment. If
the law is in the form of a body of reported decisions, they assume
that those decisions may be treated as if all rendered at the same
time and as containing implicitly whatever is necessary to the
decision of f