te
justice is not to be attained by the mechanical application of fixed
rules? Is it not clear that in this part of the administration of
justice the trained intuition and disciplined judgment of the judge
must be our assurance that causes will be decided on principles of
reason and not according to the chance dictates of caprice, and that
a due balance will be maintained between the general security and the
individual human life?

Philosophically the apportionment of the field between rule and
discretion which is suggested by the use of rules and of standards
respectively in modern law has its basis in the respective fields of
intelligence and intuition. Bergson tells us that the former is more
adapted to the inorganic, the latter more to life. Likewise rules,
where we proceed mechanically, are more adapted to property and to
business transactions, and standards; where we proceed upon
intuitions, are more adapted to human conduct and to the conduct of
enterprises. According to him, intelligence is characterized by "its
power of grasping the general element in a situation and relating it
to past situations," and this power involves loss of "that perfect
mastery of a special situation in which instinct rules." In the law of
property and in the law of commercial transactions it is precisely
this general element and its relation to past situations that is
decisive. The rule, mechanically applied, works by repetition and
precludes individuality in results, which would threaten the security
of acquisitions and the security of transactions. On the other hand,
in the handmade, as distinguished from the machine-made product, the
specialized skill of the workman gives us something infinitely more
subtle than can be expressed in rules. In law some situations call for
the product of hands, not of machines, for they involve not
repetition, where the general elements are significant, but unique
events, in which the special circumstances are significant. Every
promissory note is like every other. Every fee simple is like every
other. Every distribution of assets repeats the conditions that have
recurred since the Statute of Distributions. But no two cases of
negligence have been alike or ever will be alike. Where the call is
for individuality in the product of the legal mill, we resort to
standards. And the sacrifice of certainty in so doing is more apparent
than actual. For the certainty attained by mechanical application of
fixed