ABSTRACT
This chapter presents a sketch, a simplified and incomplete account, of legal elaboration in the common law, and argues that such elaboration requires the employment of substantive interpretation. It assumes that the terms "legal interpretation" and "Rechtsanwendung" are wide enough to encompass legal elaboration in a case-law system. The thesis of the chapter, that substantive considerations drawn from social morality are relevant to legal elaboration in the common law, rests on this idea of the primary function of courts. The distinctiveness of courts resides in the fact that in turning to a court to settle their dispute, the parties are seeking a determination in accordance with their society's standards and values. The premises on which judges base their decisions should be the general standards of the society, when the law is undeveloped, and the law plus the general standards, as the law grows, and the courts should abide by the institutional principles of adjudication.
