The+Judge+as+Legislator

- on the conception of the end of the law as determining the direction of its growth: “Not the origin, but the goal, is the main thing.” - judges must work within the interstitial limits of precedent, custom, and other judges, but “the final principle of selection for judges, as for legislators, is one of fitness to an end” - law is an expression of customary morality, which the judge must find in the life of the community and reflect in his decisions, much like a legislator

Debate: objective versus subjective standard - **objective/external standard**: the judge’s duty is to declare law in accordance with custom - **subjective/individual standard**: the judge relies on his own notions of right and wrong · subjective standard may come into play in cases where his own notions of right/wrong differ from those of the community · he should conform to accepted community standards BUT sometimes opposing forces temporarily take hold against the real community standards (the opposing forces are tolerated because of indolence or passivity), and the judge must uphold the real community standards: “[t]here are even times … when nothing less than a subjective measure will satisfy objective standards” - the objective/subjective distinction is shadowy, hard to define

Law must be uniform and impartial, with no prejudice and with adherence to precedent BUT there are times when the judge must prevent uniformity becoming “uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare.”

The judge works within narrower limits (established by traditions, other judges, colleagues, collective judgment, etc.) than those of the legislator – he only legislates “between gaps” in the law. EVEN SO, “within the confines of these open spaces and htose of precedent and tradition, **choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made.”**