He refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the Law Merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong.
The law of real estate is taken merely as an example. Maitland, Holmes, Pollock and Pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. The historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries.
From History and Philosophy and custom he passes to the power of Social Justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. It is by the way of history and tradition that he comes to the method of Sociology. It is by the common law method of applying old principles to new conditions that Courts have been able to preserve the continuity of the law in changing conditions.
Among the leading cases cited is the Bakeries case, Lochner v. New York, 198 U. S. 45, wherein Judge Cardozo suggested that in this decision the dissenting opinion of Justice Holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. Justice Holmes made the remark, "The Fourteenth Amendment does not enact Herbert Spencer's Social Status," and Judge Cardozo cites later cases in the Supreme Court to the effect that "A constitution is not intended to embody a particular economic theory, whether of paternalism ... or of _laissez faire_." It was by careful research of the effect of long hours of work for women that the change of opinion was brought about.
There is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. He quotes President Roosevelt's message to Congress, December 8, 1908, in which he says: "The chief lawmakers in our country may be, and often are, the Judges, because they are the final seal of authority.... The decisions of the Courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the Twentieth century, we shall owe most to those Judges who hold a Twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions." This aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that Judges ought to be in sympathy with the spirit of their times. Yet this does carry us very far upon our road to the truth. The spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. No effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties.