mpletely than the
analogous idea of entire separation of the judicial from the
lawmaking function.

Almost all of the problems of jurisprudence come down to a fundamental
one of rule and discretion, of administration of justice by law and
administration of justice by the more or less trained intuition of
experienced magistrates. Controversies as to the nature of law,
whether the traditional element or the imperative element of legal
systems is the typical law, controversies as to the nature of
lawmaking, whether the law is found by judicial empiricism or made by
conscious legislation, and controversies as to the bases of law's
authority, whether in reason and science on the one hand or in command
and sovereign will on the other hand, get their significance from
their bearing upon this question. Controversies as to the relation of
law and morals, as to the distinction of law and equity, as to the
province of the court and of the jury, as to fixed rule or wide
judicial power in procedure, and as to judicial sentence and
administrative individualization in punitive justice are but forms of
this fundamental problem. This is not the place to discuss that
problem. Suffice it to say that both are necessary elements in the
administration of justice and that instead of eliminating either, we
must partition the field between them. But it has been assumed that
one or the other must govern exclusively, and there has been a
continual movement in legal history back and forth between wide
discretion and strict detailed rule, between justice without law, as
it were, and justice according to law. The power of the magistrate has
been a liberalizing agency in periods of growth. In the stage of
equity and natural law, a stage of infusion of moral ideas from
without into the law, the power of the magistrate to give legal force
to his purely moral ideas was a chief instrument. Today we rely
largely upon administrative boards and commissions to give legal force
to ideas which the law ignores. On the other hand rule and form with
no margin of application have been the main reliance of periods of
stability. The strict law sought to leave nothing to the judge beyond
seeing whether the letter had been complied with. The nineteenth
century abhorred judicial discretion and sought to exclude the
administrative element from the domain of judicial justice. Yet a
certain field of justice without law always remained and by one device
or another the ba