sure for those who are pursuing some affirmative
course of conduct, the standard of what a reasonable, prudent man
would do under the circumstances. Also the law of public utilities
worked out standards of reasonable service, reasonable facilities,
reasonable incidents of the service and the like. In all these cases
the rule is that the conduct of one who acts must come up to the
requirements of the standard. Yet the significant thing is not the
fixed rule but the margin of discretion involved in the standard and
its regard for the circumstances of the individual case. For three
characteristics may be seen in legal standards: (1) They all involve a
certain moral judgment upon conduct. It is to be "fair," or
"conscientious," or "reasonable," or "prudent," or "diligent." (2)
They do not call for exact legal knowledge exactly applied, but for
common sense about common things or trained intuition about things
outside of everyone's experience. (3) They are not formulated
absolutely and given an exact content, either by legislation or by
judicial decision, but are relative to times and places and
circumstances and are to be applied with reference to the facts of the
case in hand. They recognize that within the bounds fixed each case is
to a certain extent unique. In the reaction from equity and natural
law, and particularly in the nineteenth century, these standards were
distrusted. Lord Camden's saying that the discretion of a judge was
"the law of tyrants," that it was different in different men, was
"casual" and dependent upon temperament, has in it the whole spirit of
the maturity of law. American state courts sought to turn the
principles by which the chancellors were wont to exercise their
discretion into hard and fast rules of jurisdiction. They sought to
reduce the standard of reasonable care to a set of hard and fast
rules. If one crossed a railroad, he must "stop, look and listen." It
was negligence _per se_ to get on or off a moving car, to have part of
the body protruding from a railroad car, and the like. Also they
sought to put the duties of public utilities in the form of definite
rules with a detailed, authoritatively fixed content. All these
attempts to do away with the margin of application involved in legal
standards broke down. The chief result was a reaction in the course of
which many states turned over all questions of negligence to juries,
free even from effective advice from the bench, while many other