Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/64

 § 71.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. IV. no more as rules of corporation law than as rules of the law of partnership or suretyship. They are rather legal rules of al- most universal application, reasons for which exist in respect to almost all legal institutions. They are rules which, like the rule that for a valid contract there must be a consideration, form the basis of the law of contracts, or, like the rule that a man is responsible for the acts of his agent within the scope of his authority form the basis of the law of agency. § 70. The second method by which courts may form new rules of law, is by applying to the case in question eatfcmoi 1 " general principles of law of extended application, principles The objection to this method is that it is well nigh impracticable on account of the difficulty in determin- ing what are these general principles of law. Still, this objec- tion is not insurmountable. However much jurists may differ in regard to the science of jurisprudence, that there is some such science founded on general principles in themselves logi- cal, just, or farseeingly expedient, according as one may phrase it, few would deny. It is not necessary for jurisprudence that it should be based on principles, true, just, or expedient for all time. It is enough for such a science that it be based on founda- tions that will last out a generation or two. As such, it will be the expression of the systematized common sense or intelli- gence of men specially trained in law. § 71. Indeed, to form a new rule based on general principles of law is no more than forming a rule which shall not shock the trained intelligence of jurists ; and such a rule will be con- sistent with the law as a whole, in so far as any rule can be consistent with a huge body of rules, some of which are incon- sistent with the rest. Forming a new rule of law amounts to little more than deciding a novel case in accordance with what seems to the court, considering the general state of the law and of society, to be on the whole most expedient or just. The danger arising from reasoning from the analogy of different legal institutions is, lest a rule of law be applied where the rea- sons for its application fail; and in truth, where a rule of law already identified with one legal institution is advantageously applied to another, it will be because good reasons for the ap- plication of the rule exist, and not because of the resemblance of one institution to a fancied prototype. 44