By Francis Biddle
The Oliver Wendell Holmes Devise Lecture for 1960
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Feeley and Rubin, Judicial Policy Making, at 205–206. 8 THE JUDICIAL PROCESS conducive to sound judicial reasoning. Indeed, there is no logical reason to believe that policy-making without an underlying conception of the judicial role will be other than random, incoherent or irrelevant. Nor, without a basic understanding of legal theory, will the judges be able to enter into any sensible discourse about judicial policy-making. Discourse will also proceed among legal theorists and academics without the benefit of the direct experience that judges can provide.
As such, its justification is to be found in the manner and extent to which the law meets those needs and expectations. Central to this quest are justice and contemporaneity. The needs and expectations of society will not be INTRODUCTION 15 met unless the law is just and the courts administer justice, and the law is responsive to the ever-changing requirements of the times. Justice and relevance are the leitmotifs of this work. In Chapter 3, I examine the consequences of residual formalism and the preconceptions it engenders.
Principles provide the law or legal process with cohesion and continuity. They become the means by which a mass of disparate and at times conflicting considerations are hobbled into a coherent whole. In Chapter 14, entitled ‘Taking Law Seriously’, the difference that greater judicial familiarity with legal theory and the development of a comprehensive conception of the judicial role would make in practice is explored. I point out the respects in which this development would make overt much that is now being done covertly by the judiciary.