Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/11

 PREFACE TO THE THIRD EDITION. It is generally recognized that, while legislatures may endeavor to direct, courts should follow the business habits of the people, and, without thwarting what custom has found convenient, render decisions in accordance with scientifically adjusted principles of justice. Even then the law must be somewhat behind the practice of the business community ; for questions cannot be litigated until the transactions giving rise to them have been engaged in, and although business men seek to act with reference to the law, occasions for novel methods of business continually arise, and novel questions come before the courts. It is clear, moreover, that though a court bring the decision of the novel point within recognized legal principles, some extension or modification of the law has occurred. And thus courts continually change the law by en- deavoring to keep it abreast of the people's life. In deciding a case, judges apply the rules which best fit the facts. These rules will usually depend on broader legal principles lying back of them, one stage further from direct application to the case. Consequently, novel facts tend to modify the rules directly applied to them, and have less effect on legal principles in the background ; and it may be that through application to novel instances of fact, the more special rules of law will become so modified as no longer to accord with the broader principle from which they were originally deduced. And when special rules cease to accord with the general rule once back of them, — if no further convenient rules can be drawn from the general rule, — it drops from the body of the law, to which it is no longer organic, unless it chance to be expressed in some apt phrase. Thus it is at present with the rule or fiction that a corporation is a legal person : it still represents a convenient phrase, nay, a con- venient point of view ; but it is dead as a principle because legal propositions are no longer deduced from it, nor is it in v