istotle,
characterizes the law. It is significant that in England today the
civil jury is substantially confined to cases of defamation, malicious
prosecution, assault and battery and breach of promise of marriage.
Judicial individualization through choice of a rule is most noticeable
in the law of torts, in the law of domestic relations and in passing
upon the conduct of enterprises. The elaborate system of
individualization in criminal procedure has to do wholly with
individual human conduct. The informal methods of petty courts are
meant for tribunals which pass upon conduct in the crowd and hurry of
our large cities. The administrative tribunals, which are setting up
on every hand, are most called for and prove most effective as means
of regulating the conduct of enterprises.

A like conclusion is suggested when we look into the related
controversy as to the respective provinces of common law and of
legislation. Inheritance and succession, definition of interests in
property and the conveyance thereof, matters of commercial law and the
creation, incidents and transfer of obligations have proved a fruitful
field for legislation. In these cases the social interest in the
general security is the controlling element. But where the questions
are not of interests of substance but of the weighing of human conduct
and passing upon its moral aspects, legislation has accomplished
little. No codification of the law of torts has done more than provide
a few significantly broad generalizations. On the other hand,
succession to property is everywhere a matter of statute law and
commercial law is codified or codifying throughout the world. Moreover
the common law insists upon its doctrine of _stare decisis_ chiefly
in the two cases of property and commercial law. Where legislation is
effective, there also mechanical application is effective and
desirable. Where legislation is ineffective, the same difficulties
that prevent its satisfactory operation require us to leave a wide
margin of discretion in application, as in the standard of the
reasonable man in our law of negligence and the standard of the
upright and diligent head of a family applied by the Roman law, and
especially by the modern Roman law, to so many questions of fault,
where the question is really one of good faith. All attempts to cut
down this margin have proved futile. May we not conclude that in the
part of the law which has to do immediately with conduct comple