…the law is not at any time completed but is always being modified in the process of judicial decision. Not only is the common law what the judges have made it but this is also largely the case with our statutory law, of which constitutional law is a special instance. (p. 81) The law …is a self correcting system. (p. 82)
The end of law, the administration of justice, can not be accomplished by empiricism, ie., by letting the judge decide each case on its merits. Such a hand-to-mouth existence will not do; for people must know with some degree of certainty beforehand what they may and what they may not do. Hence judges or magistrates must, even in the absence of legislation, be bound by rules, so as to to eliminate as far as possible the personal equation and make the law uniform, definite, and certain. This requirement that the law should be rational, i.e., deducible from established principles, compels the law to assume the form of a deductive science. But this deduction soon becomes an end in itself and is frequently pursued in flagrant contradiction with the ends of justice. Thus there results what Professor Pound has called mechanical jurisprudence, i.e., a jurisprudence in which deductions are made from concepts without taking into account the question whether changing conditions have made them no longer applicable. A distinguished jurist, Windscheid speaks of “the ancient, ever-ending dream that there is a peculiar rigid and unchangeable body of legal rules which follow from pure reason and are necessary for all times and all places.” It is this false intellectualism which under the guise of natural rights is in the United States to-day stifling all progressive social legislation. (p. 142-143.)
The failure to discriminate clearly between distinguishing and separating is one of the great obstacles to the advancement of real understanding. To separate two phases of a subject is to ignore their interconnection, while to distinguish the two is to clarify them and their function in the totality which includes them. The baffling character of life’s practical problems consists largely in the difficulty of finding the factors in ay given situation that are relevant to our purpose and distinguishing them clearly from what is irrelevant. If we cannot make the necessary distinctions we are swamped by irrelevancies. The elimination of irrelevancies may over a long period be brought about by a process analogous to natural selection, but in the exact sciences it is more readily effected by mathematical or logical analysis. …To refuse, therefore, to make any sharp distinction is to shut the gates to any effective intellectual inquiry; while to stop with an abstract distinction and to fail to realize the connection of the things distinguished (which I take to be the basic vice of false separation) is to fail to complete the process of understanding. In trying to avoid the lesser error, Professor Fuller manages, like so man
y others, to fall into the greater one. There is no possible warrant for his rejecting the sharp distinctions between what is and what ought to be the law, “as a starting point” applicable “to the raw data which experience offers us” .(pp 172 – 173)
…the important task of questioning or critically examining our oral premises [is] a procedure which distinguishes science, in which all can participate, from the blind dogmatism that divides us into sects. This free scientific criticism of basic principles is essential to liberal civilization. Without it we lunge into passionate but blind conflicts. ( p. 175)
Under all legal systems men have certain choices. But these choices are effective only when adequately protected. Our freedom to travel does not amount to much where there is no police protection or no traffic rules. It is the whole body of governmental or non-autonomous law including criminal, police, and property law, which makes it possible for a man to have any real estate, rents, stocks and bonds, patents or franchises, which he can dispose of. Modern property exists only in the modern state. (p. 170)
Morris Raphael Cohen: Reason and Law, (The Crowell-Collier Publishing Company, 1950)