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notion that a given system； ours； for instance； can be worked out like
mathematics from some general axioms of conduct。 This is the natural
error of the schools； but it is not confined to them。 I once heard a
very eminent judge say that he never let a decision go until he was
absolutely sure that it was right。 So judicial dissent often is blamed；
as if it meant simply that one side or the other were not doing their
sums right； and if they would take more trouble； agreement inevitably
would come。
This mode of thinking is entirely natural。 The training of lawyers is a
training in logic。 The processes of analogy； discrimination； and
deduction are those in which they are most at home。 The language of
judicial decision is mainly the language of logic。 And the logical
method and form flatter that longing for certainty and for repose which
is in every human mind。 But certainty generally is illusion； and repose
is not the destiny of man。 Behind the logical form lies a judgment as
to the relative worth and importance of competing legislative grounds；
often an inarticulate and unconscious judgment； it is true； and yet the
very root and nerve of the whole proceeding。 You can give any
conclusion a logical form。 You always can imply a condition in a
contract。 But why do you imply it？ It is because of some belief as to
the practice of the community or of a class； or because of some opinion
as to policy； or； in short； because of some attitude of yours upon a
matter not capable of exact quantitative measurement； and therefore not
capable of founding exact logical conclusions。 Such matters really are
battle grounds where the means do not exist for the determinations that
shall be good for all time； and where the decision can do no more than
embody the preference of a given body in a given time and place。 We do
not realize how large a part of our law is open to reconsideration upon
a slight change in the habit of the public mind。 No concrete
proposition is self evident； no matter how ready we may be to accept it；
not even Mr。 Herbert Spencer's 〃Every man has a right to do what he
wills； provided he interferes not with a like right on the part of his
neighbors。〃
Why is a false and injurious statement privileged； if it is made
honestly in giving information about a servant？ It is because it has
been thought more important that information should be given freely；
than that a man should be protected from what under other circumstances
would be an actionable wrong。 Why is a man at liberty to set up a
business which he knows will ruin his neighborhood？ It is because the
public good is supposed to be best subserved by free competition。
Obviously such judgments of relative importance may vary in different
times and places。 Why does a judge instruct a jury that an employer is
not liable to an employee for an injury received in the course of his
employment unless he is negligent； and why do the jury generally find
for the plaintiff if the case is allowed to go to them？ It is because
the traditional policy of our law is to confine liability to cases where
a prudent man might have foreseen the injury； or at least the danger；
while the inclination of a very large part of the community is to make
certain classes of persons insure the safety of those with whom they
deal。 Since the last words were written； I have seen the requirement of
such insurance put forth as part of the programme of one of the best
known labor organizations。 There is a concealed； half conscious battle
on the question of legislative policy； and if any one thinks that it can
be settled deductively； or once for all； I only can say that I think he
is theoretically wrong； and that I am certain that his conclusion will
not be accepted in practice semper ubique et ab omnibus。
Indeed； I think that even now our theory upon this matter is open to
reconsideration； although I am not prepared to say how I should decide
if a reconsideration were proposed。 Our law of torts comes from the old
days of isolated； ungeneralized wrongs； assaults； slanders； and the
like； where the damages might be taken to lie where they fell by legal
judgment。 But the torts with which our courts are kept busy today are
mainly the incidents of certain well known businesses。 They are
injuries to person or property by railroads； factories； and the like。
The liability for them is estimated； and sooner or later goes into the
price paid by the public。 The public really pays the damages； and the
question of liability； if pressed far enough； is really a question how
far it is desirable that the public should insure the safety of one
whose work it uses。 It might be said that in such cases the chance of a
jury finding for the defendant is merely a chance； once in a while
rather arbitrarily interrupting the regular course of recovery； most
likely in the case of an unusually conscientious plaintiff； and
therefore better done away with。 On the other hand； the economic value
even of a life to the community can be estimated； and no recovery； it
may be said； ought to go beyond that amount。 It is conceivable that
some day in certain cases we may find ourselves imitating； on a higher
plane； the tariff for life and limb which we see in the Leges
Barbarorum。
I think that the judges themselves have failed adequately to recognize
their duty of weighing considerations of social advantage。 The duty is
inevitable； and the result of the often proclaimed judicial aversion to
deal with such considerations is simply to leave the very ground and
foundation of judgments inarticulate； and often unconscious； as I have
said。 When socialism first began to be talked about； the comfortable
classes of the community were a good deal frightened。 I suspect that
this fear has influenced judicial action both here and in England； yet
it is certain that it is not a conscious factor in the decisions to
which I refer。 I think that something similar has led people who no
longer hope to control the legislatures to look to the courts as
expounders of the constitutions； and that in some courts new principles
have been discovered outside the bodies of those instruments； which may
be generalized into acceptance of the economic doctrines which prevailed
about fifty years ago； and a wholesale prohibition of what a tribunal of
lawyers does not think about right。 I cannot but believe that if the
training of lawyers led them habitually to consider more definitely and
explicitly the social advantage on which the rule they lay down must be
justified； they sometimes would hesitate where now they are confident；
and see that really they were taking sides upon debatable and often
burning questions。
So much for the fallacy of logical form。 Now let us consider the
present condition of the law as a subject for study； and the ideal
toward which it tends。 We still are far from the point of view which I
desire to see reached。 No one has reached it or can reach it as yet。
We are only at the beginning of a philosophical reaction； and of a
recon