In a former lecture I sought to show that the
process of judicial lawmaking consisted in develop-
ment of the materials of the common-law tradition
and of the new premises provided, largely on the
basis of that tradition by jurist and legislator, by
means of a known technique--the "artificial reason
and judgment of the law" of which Lord Coke told
his indignant sovereign. For whether working upon
the materials of the tradition with the case-knife or
pickax of the beginnings of legal science or with the
more complicated instruments of the modern legal
armory, judicial activity must be directed consciously
or unconsciously to some end. In the beginnings of
law this end was simply a peaceable ordering. In
Roman law and in the Middle Ages it was the main-
tenance of the social status quo. From the seven-
teenth century until our own day it has been the
promotion of a maximum of individual self-assertion.
Assuming some one of these as the end of the
legal ordering of society, the jurist works out an
elaborate critique on the basis thereof, the legislator
provides new premises for judicial decision more or
less expressing the principles of this critique, and the
judge applies it in his choice of analogies when called
upon to deal with questions of first impression and
uses it to measure existing rules or doctrines in pass-
ing upon variant states of fact and thus to shape
these rules and doctrines by extending or limiting
them in different directions. The basis of all these
operations is some theory as to what law is for.
When, then, is the theory of the new stage of legal
development upon which we seem to be entering?

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