that it communicates its own faults to the statutes which it accompanies, and forms the principal bulk, to which they are merely supplemental or accessory 25. This certainly holds good for all cases where codification has never been performed. Judiciary law, being the continuous outcome of recurring practical needs, must roughly form certain principles and vaguely define certain technical terms. These, if merely referred to or assumed by appended statutes, must import into the latter all their own uncertainty, until this is removed by the satisfactory achievement of statutory definition—“ a process," says Austin, "which people may think an easy one, until they come to try it." Supposing, however, this last difficulty to have been once surmounted-as it has satisfactorily been in many instances within our experience—I do not see that the subsequent accumulation of judiciary law round a core or nucleus of statute is open to Austin's objection, which only applies to the reverse order of things.

Partial developement of case law. A valid objection to judiciary legislation when left to itself, is well stated by Mr Pollock 26, but not noticed by Austin, except so far as it arises in his criticism on Lord Mansfield. That great authority expressed, in argument, an objection to statutes which “can seldom take in all cases," and a preference for "common law that works itself pure by rules drawn from the fountains of justice"7" Denuded of metaphor, and of the fiction that common law is something pre-existent, this opinion may be taken to have the following meaning, when applied to judiciary law in general. As opposed to the finality of statutes, judiciary law admits of easy and continued reform, providing for exigencies, i.e. new cases, as they practically arise, and tending, on the whole, to simplify itself.

25 See Austin 39. p. 681.

26 Pollock, Essays. "Anomalies of legal development," pp. 67, 83. 27 Omychund and Barker, quoted by Austin 39. p. 686.

It is not difficult for Austin, assuming his account of the application of a precedent to be strictly correct, to shew that the rules of judiciary law stand, in respect of not anticipating all cases, on exactly the same footing as the rules of statute law. But, in actual practice, it is absurd to deny that the older rules are greatly developed and expanded, in the direction, too, of actual requirements, by subsequent decisions. Whether they are simplified and put into a more intelligible form or not, is another matter.

Austin's objection to Lord Mansfield's view does not seem to affect the usefulness or even completeness of the matter to be derived from judiciary legislation on a particular subject. He in fact ends by accepting the mass of rationes decidendi as a satisfactory body of law, provided they be turned into a compact and accessible form by codification 28. Mr Pollock, on the other hand, shews, by satisfactory instances, that the developement of a legal subject, through a system dependent on actual cases alone, is uneven and partial. So far from the stream of law working itself pure, it accumulates apparently unnecessary obstacles and tends to lose itself in unimportant channels. Some scientific element, like that furnished by the hypothetical cases of the Roman students", seems required, to fill up the gaps left by actual litigation, and add unity and clearness to the mere accumulations of practice.

The advantages of case law. In discussing the objections which may be made to case law, I have left myself very little space for the other side. Indeed its advantages must be admitted to be at present rather potential than actual.

But, even in its present condition, it appears to be absolutely indispensable, if not to the judge, at any rate to the professional adviser. In some form of more or less authority

28 Austin 39. p. 688.

29 Below p. 290.

the influence of precedents has practically made its way into those very systems which profess to exclude it. And we may doubt whether it ever can be entirely excluded by any possible reconstruction of sovereign legislatures.

It is not, however, merely as an unavoidable necessity that I would regard case law. From the partial developement of legal subjects just alluded to, it is clear that the mere spontaneous working of judicial institutions will not provide for just the right things and in just the right way. But the fragmentary material, which it will provide, contains much that is of great value. Supposing a perfect codification of all existing law to be effected, we cannot expect, as has been so often urged, the best and most scientific enactors of statute to foresee every possible case or even class of cases. Supposing the rules to be drawn up in so clear a manner as to dispense with any future necessity for genuine interpretation, we must expect, in new combinations of legal rights and duties, the necessity for analogical application of those rules, if not for their extensive and restrictive interpretation. And whenever the scientific process described by Mr Pollock 31 is

31

30 A good instance occurs in Prussian law. The Code (Landrecht, Einl. § 9) expressly forbids judicial reference either to the opinions of teachers of law or to previous judgements. Where the meaning of the statute law is doubtful, the judge is to decide the case by the general rules for the interpretation of statutes (ib. § 46, Anhang 2); where there is no statute law, by the general principles received in the Landrecht and the regulations for similar cases (ib. § 49). As a matter of jurisdiction, Prussian law appears distinctly to allow both extensive and restrictive interpretation (Schmidt, Lehrbuch des Preussischen Rechts, 1875, B. 1. p. 44). Here we have all the elements of case law without the authority. But late writers inform us that the effect of the above prohibition is much modified by subsequent statutes and ordinances, that the decisions at least of the supreme Courts are regularly published, and that they already exercise a decided if not exactly a binding influence upon subordinate judges (Schmidt ib. pp. 48, 49, and Holtzendorff cited above, p. 224, n. 37).

31 See above ch. 5. p. 249.

actually performed, as no doubt it is by our best practitioners, and presumably by most of our judges, the individual modifications of existing rules will be reasonable, because based on sound induction. So far as they go, they are the outcome of practical needs, considered by men of the highest practical experience. The preeminent capacity of judges for legislation is admitted even by Austin in one of his objections to judiciary law. And the result of his arguments on the whole subject would appear to me to be, not the abolition of judge-made law, but its retention, subject to revision and generalisation by the judges themselves.

Finally, the modifications effected by judiciary legislation are, at least, with us, very little suggested or affected by political feeling. With rare exceptions, they are based on purely scientific or utilitarian grounds, and are the result of independent and individual reasoning. Such a process is uncommon in political assemblies, where the most indifferent questions become matters of party spirit, and the decision of each person is generally determined beforehand by the side. to which he belongs.

32 Austin 39. p. 673.

:

CHAPTER VII.

TEXT-BOOK LAW: JUS SCRIPTUM AND JUS NON SCRIPTUM.

Contents of text-books. Classifying law roughly by the literary authorities for it, I have called the third class text-book law. This is, as was said above, a sort of appendix or residuary clause, comprising the matter, by no means homogeneous, which remains over, when statute and judiciary law have been considered. I exclude, of course, all matter which, though found in text-books, belongs to the above-named classes. Text-books generally include statutes in the ordinary sense, authoritatively published rules of practice, and reported decisions-for all of which, however, they are not the proper literary authority. But they include besides, and as their main contents, a great deal which differs from case law in form, from statute law in authority, and is itself composed of several different elements. With the exception of such part as may still remain in oral tradition, we find here all of what I must term, in despite of Austin, customary law. Besides the old national usages which are more correctly designated by this term, we also find many rules both of practice and principle which gradually obtain authority with Courts. Sometimes these are obviously, generally they may be supposed to have been, abstractions or generalisations from cases: but they do not record the cases, or at least do not preserve their special circumstances.