Austin, Lectures on Jurisprudence, 5th ed., vol. 2, lecture 37

IN the following discourse, I shall call your attention to a few of the numerous differences which distinguish statute law (or law made by direct, or proper legislation) from judiciary law (or law made by judicial, or improper legislation). And having stated or suggested a few of those numerous differences, I shall remark upon the advantages and disadvantages of judicial or improper legislation, and the possibility of excluding that prevalent mode of legislation, by means of codes, or systems of statute law.

I would briefly remark, before I proceed to the former subject, that I do not mean exclusively, by the term ‘statute law,’ statute law made directly by sovereign or supreme legis621latures: and that I do not mean exclusively, by the term ‘judiciary law,’ judiciary law made directly by subordinate judges or tribunals. As I have shewn sufficiently in preceding lectures, there is no necessary connection between direct and supreme, or between judicial and subordindate legislation. Statute law may proceed directly from subject, or subordinate authors: whilst a monarch or supreme body may exercise the judicial powers inhering necessarily in the Sovereign, and therefore may be directly the author of law made in the judicial manner.

By the opposed expressions ‘statute law,’ and ‘judiciary law,’ I point at a difference (not between the sources from which law proceeds, but) between the modes in which it begins. By the term ‘statute law,’ I mean any law (whether it proceed from a subordinate, or from a sovereign source) which is made directly, or in the way of proper legislation. By the term ‘judiciary law,’ I mean any law (whether it proceed from a sovereign, or a subordinate source) which is made indirectly, or in the way of judicial or improper legislation.

Having premised this explanation, I call your attention to a few of the numerous differences which distinguish statute from judiciary law.

The principal or leading difference between those kinds of law, is, I apprehend, the following:

A law made judicially is made on the occasion of a judicial decision. The direct or proper purpose of its immediate author is, the decision of the specific case to which the rule is applied, and not the establishment of the rule. Inasmuch as the grounds of the decision may serve as grounds of decision in future and similar cases, its author legislates substantially or in effect: And his decision is commonly determined (not only by a consideration of the case before him, but) by a consideration of the effect which the grounds of his decision may produce as a general law or rule. He knows that similar cases may be decided in a similar manner; and that the principles or grounds of his decision may therefore be a law by which the members of the community may be bound to guide their conduct.—But, this notwithstanding, his direct and proper purpose is not the establishment of the rule, but the decision of the specific case to which he applies it. He legislates as properly judging, and not as properly legislating.

But a statute law, or a law made in the way of direct legislation, is made solely, and is made professedly, as a law or rule. It is not the instrument or mean of deciding a specific case, but 622is intended solely to serve as a rule of conduct, and therefore to guide the tribunals in their, decisions upon classes of cases.

The principal difference between statute and judiciary law lies in a difference between the forms in which they are respectively expressed.

The principal difference, therefore, between statute and judiciary law, lies in a difference between the forms in which they are respectively expressed.

A statute law is expressed in general or abstract terms, or wears the form or shape of a law or rule.

A law (or rule of law) made by judicial decisions, exists nowhere in a general or abstract form. Before it can be known, it must be gathered from the grounds or reasons of the specific decision or decisions by which it was virtually established. It therefore is implicated with the peculiarities of the specific case or cases, to the adjudication or decision of which it was applied by the tribunals. In order that its import may be correctly ascertained, the peculiar circumstances of the cases to which it was applied, as well as the general propositions which occur in the decisions, must be observed and considered. For those general propositions being thrown out by the tribunals with a view to the decision of a specific case, they must be taken in conjunction with, and must be limited by, the specific or individual peculiarities by which that case was distinguished. Such general propositions, occurring in the course of a decision, as have not this implication with the specific peculiarities of the case, are commonly styled extra-judicial, and commonly have no authority.

In short, although a rule or principle is established by the decision or decisions, and is applicable and actually applied to subsequent and resembling cases, that rule or principle lies in concreto, and must be gotten from the decisions by which it was established, through a process of abstraction and induction. Before we can find the import of the general principle or rule, we must exclude the peculiarities of the cases to which it was applied, and must consider the decision to which the tribunal would have come, if its decision had not been modified by those specific differences.

Looking at the general reasons alleged by the Court for its decisions, and abstracting those reasons from the modifications which were suggested by the peculiarities of the cases, we arrive at a ground or principle of decision, which will apply universally to cases of a class, and which, like a statute law, may serve as a rule of conduct.

But without this process of abstraction, no judicial decision 623can serve as a guide of conduct, or can be applied to the solution of subsequent cases. For as every case has features of its own, and as every judicial decision is a decision on a specific case, a judicial decision as a whole (or as considered in concreto), can have no application to another, and, therefore, a different case.

And here I will remark (before I proceed further) an enormous fault of Justinian’s Pandects and Code, considered as a code (in the modem acceptation of the term): that is to say, as a body of general rules.

Though much of his Code consists of edictal or general Constitutions (which, as I have stated already, are statute laws), much of it consists of constitutions which are special or particular: that is to say, which are judicial decisions of the Roman Emperors as the supreme judicatory of the empire, and not, like the edictal constitutions of the same emperors, general laws or rules.

Consequently, his Code is a compilation of statutes, and of judicial decisions: a heterogeneous mass of objects having no other relation, than that they are all of them Imperial Constitutions: that is to say, statutes and other orders emanating from the Emperors directly, and not emanating directly from subordinate legislatures or tribunals.

His Pandects (as I stated in my last Lecture) consist mainly of excerpts or fragments from the writings of celebrated and authoritative jurisconsults. But most of those writings were casuistical, or consisted of opinions of the writers on specific or particular cases. They consisted of applications of actual law to specific cases; or of applications to specific cases, of law anticipated by the writers: that is to say, of law, which (in the opinion of the writers) the tribunals would probably emit, in the event of the cases in question coming under judicial cognisance.

Most of those writings, therefore, were closely analogous to compilations of judicial decisions: The only difference being, that judicial decisions are opinions pronounced by sovereign authority, whilst the decisions or opinions, which were contained in those writings of jurisconsults, were decisions or opinions on particular cases, emitted by private or unauthorised persons. [But were rendered law by Justinian’s sanction: i.e. tantamount to judicial decisions.]

Some of the writings of jurisconsults, from which excerpts are inserted in the Pandects, were undoubtedly didactic: that is to say, they consisted of expositions, in general terms, of the Roman Law. And, by consequence, they are more analogous to 624statutes than to judicial decisions. [And were rendered such, through Justinian’s ordination and promulgation.] They consist of expositions of law in abstract or general terms, as statutes consist of commands conceived in similar expressions. The difference between those writings and statutes or legislative enactments, mainly consists in this: that statutes are general rules set by sovereign authority; whilst the writings in question (though conceived in general expressions) were merely expositions of law by private or unauthorised lawyers.

The literal meaning of the words in which a statute is expressed (or their grammatical, customary, or obvious meaning) is the primary index to the sense which the author of the statute annexed to them: Or (changing the phrase), it is the primary index to the intention with which the statute was made, or the primary index to the law which the legislature intended to establish.

But the interpreter regarding and consulting the literal meaning of the words, may find that the intention which the legislature held is indeterminate and dubious: that is to say, he may not be able to discover in the literal meaning of the words, any determinate purpose that the legislature may have entertained. Now, if he cannot discover in the literal meaning of the words, any such definite and possible purpose, he may seek in other indicia, the intention which the legislature held: He may seek it, for example, in the reason of the statute, as indicated by the statute itself; or in the reason of the statute, as indicated by the history of the statute; or in the clear enactments of other statutes made by the same legislature in pari materiâ.

But if he be able to discover in the literal meaning of the words, any such definite and possible purpose, he commonly ought to abide by the literal meaning of the words, though it vary from the other indices to the actual intention of the legislature. Or (changing the phrase), though the literal meaning of the words vary from the other indicia, he commonly should take the intention which their literal meaning may point at, as and for the intention with which the statute was made. For by reason of the abstract form which is given to a statute law, the very words of the statute are almost parcel of the statute. The terms through which the legislature tried to convey its intention, were probably measured as carefully as the intention which it tried to convey. And the interpreter ought to infer (unless the contrary manifestly appear), that it employed 625them with the obvious meaning which custom has annexed to them, and not with a sense which is unusual, and therefore recondite and obscure.

If the literal meaning of the words were not the primary index (or were not scrupulously regarded by the interpreter), all the advantages (real or supposed) of statute legislation would be lost. For the purpose is, to give an index more compendious, compact (or lying together), and therefore less fallible, than is that to a judiciary rule. But if the interpreter might, ad libitum, desert the literal meaning, no such index could be given.

In the case, therefore, of a statute, the primary index to the law which the lawgiver intended to establish, is the grammatical sense of the words in which the statute is expressed.

But the primary index to a rule created by a judicial decision, is not the grammatical sense of the very words or terms in which the judicial decision was pronounced by the legislating judge: And, à fortiori, it is not the grammatical sense of the very words or terms in which the legislating judge uttered his general propositions. As taken apart (or by themselves), and as taken with their literal meaning, the terms of his entire decision (and, à fortiori, the terms of his general propositions) are scarcely a clue to the rule which his decision implies. In order to an induction of the rule which his decision implies, their literal meaning should be modified by the other indices to the rule, from the very commencement of the process. From the very beginning of our endeavour to extricate the implicated rule, we should construe or interpret the terms of his entire decision and discourse, by the nature of the case which he decided; and we should construe or interpret the terms of his general or abstract propositions, by the various specific peculiarities which the decision and case must comprise. For it is likely that the terms of his decision were not very scrupulously measured, or were far less carefully measured than those of a statute; insomuch that the reasons for his decision, which their literal meaning may indicate, probably tally imperfectly with the reasons upon which it is founded. And his general propositions are impertinent, and ought to have no authority, unless they be imported necessarily (and therefore were provoked naturally) by his judicial decision of the very case before him.⁵⁷

⁵⁷ Nor is it necessary, that the general grounds should be expressed by the judge. In which case, the only index is, the specialities of the decision as construed (or receiving light) from the nature or class of the case. An inference ex rei naturâ.—See Thibaut and Mühlenbruch.

626Most, however, of the writings of jurisconsults (of excerpts from which the Pandects are composed), are rather opinions on specific cases, than expositions (in abstract terms) of the Roman Law.

A large portion of the Code, and a larger portion of the Pandects, consist not of general rules (or of statute laws), but of judicial decisions (or of opinions analogous to such decisions), from which rules must be gathered by a process of abstraction and induction.

And, what is worse, the portion of the Code and Pandects which consists of such decisions and opinions, is constructed with so little reflection and so little skill, that the general reasons or principles which were the bases of the decisions and opinions are often extremely uncertain.

As I have stated already, the general propositions which occur in a judicial decision, must always be taken with reference to the specific peculiarities of the case. For, as the proper purpose of the judge is the decision of the specific case, any general proposition which does not properly concern it is extrajudicial and unauthoritative. And (moreover) as the judge is not (like the legislator) occupied in constructing a rule, his general propositions are often crudely expressed, and must be carefully construed by a constant reference to his direct and proper purpose. Any of his general propositions, taken by itself, is commonly broader or narrower than the intention which he really entertains. The inaccurate expressions in which it is conveyed, must, therefore, be enlarged or restricted by the scope of his entire discourse. And the scope of his entire discourse cannot be known with assurance, unless the case which he decides is known in all its detail.

But, for the sake of conciseness, or for the sake of getting at propositions of an abstract or general form, the facts of the cases contained in the Code and Pandects are often suppressed by the compilers. The general propositions contained in the special Constitutions (or contained in the analogous opinions of the jurisprudential writers), are detached from the facts to which they were applied, and which are requisite guides to their exact import.

Consequently, before we can arrive at their exact import, we must perform a double process. From the remaining fragments of the particular case to which a proposition of the kind was applied by the judge or jurisconsult, we must gather the residue of that specific case. And having thus conjectured 627the subject of the decision or opinion, we must collect the import of the proposition (as a general principle or rule), by the process of abstraction and induction to which I have already adverted.

Conceive a general proposition of my Lord Eldon, detached from the case in which it occurs, and from the careful limitations (suggested by the peculiarities of the case) with which the proposition is guarded.

Now a collection of propositions so detached (and of which the exact import must therefore be extremely uncertain), will afford a conception of most or much of the matter, which Tribonian and his associates inserted in the Code and Pandects, as the future law of the Roman Empire.

It follows from what has preceded, that law made judicially must be found in the general grounds (or must be found in the general reasons) of judicial decisions or resolutions of specific or particular cases: that is to say, in such grounds, or such reasons, as detached or abstracted from the specific peculiarities of the decided or resolved cases. Since no two cases are precisely alike, the decision of a specific case may partly turn upon reasons which are suggested to the judge by its specific peculiarities or differences. And that part of the decision which turns on those differences (or that part of the decision which consists of those special reasons), cannot serve as a precedent for subsequent decisions, and cannot serve as a rule or guide of conduct.

The general reasons or principles of a judicial decision (as thus abstracted from any peculiarities of the case) are commonly styled, by writers on jurisprudence, the ratio decidendi. And, this ratio decidendi must be carefully distinguished from that, which is commonly called ratio legis. The latter is the end or purpose which moved the legislator to establish a statute law. Or it is the end or purpose of any of its particular provisions: an end or purpose which is subordinate to the general design of the statute.

Ratio decidendi is itself a law: or, at least, it is the general ground or principle of a judicial decision or decisions. For want of a statute law, it performs the functions of a general rule, or of a guide of conduct. Though not a rule in form, it is tantamount to a general command proceeding from the sovereign or state, or from any of its authorised subordinates. For, since it is its known will that the general reason of a 628decision on a particular or specific case shall govern decisions on future resembling cases, the subjects receive from the state (on the occasion of such a decision) an expression or intimation of its sovereign will, that they shall shape their conduct to the reason or principle thereof.

And here I will briefly remark, that, when I speak of a rule made by a judicial decision, I mean, of course, such a judicial decision as is not a mere application of previously existing law. By such a judicial decision, as is merely an application of previously existing law, no rule is made. In such a decision, the ratio decidendi is the general ground of the decision which the judge applied to the given case: that is to say, the general ground of decision is either some statute law, or else the general ground of some anterior decision by which a new rule had been already introduced and created. In every judicial decision by which law is made, the ratio decidendi is a new ground or principle, or a ground or principle not previously law.

The interpretation or construction of statute law, and the peculiar process of abstraction and induction, etc.

It appears, then, from what has foregone, that ratio decidendi (or the ground or principle of a judicial decision which is not merely an application of pre-existing law) is itself a law, or performs the functions of a law.

But ratio legis is not a law; nor does it perform, in any respect, the functions of a law. It is the general and paramount cause of a statute law (or else the particular and subordinate reason of any of its particular and subordinate provisions). The rule to be observed by the governed is not the ratio legis, but the lex ipsa. The rule to be observed by the governed must be collected from the terms wherein the statute is expressed: though, to the end of ascertaining the meaning annexed to those terms by the legislator, the ratio legis (as a mean or instrument of interpretation or construction) must commonly be consulted by the judges who apply the statute judicially, and by all who would shape their conduct to the provisions of the statute.

Hence it follows, that the interpretation or construction of a statute law widely differs from the analogous process of induction, by which a rule made judicially is collected from decided cases.

Since a statute law is expressed in determinate expressions, and those expressions were intended to convey the will of the legislator, it follows that the import or meaning which he annexed to those very expressions is the object of genuine interpretation. If those terms be of doubtful import, the ratio or 629scope of the statute (or even the history of the statute) may be used as an instrument or mean for determining the doubtful import. But if those terms be not doubtful, the certain sense of those terms must be followed by the judge, although it may conflict with the scope of the statute as collected from other indicia.

Ratio legis is, as I have said, the scope or determining cause, of a statute law: that is to say, the end or purpose which determines the lawgiver to make it, as distinguished from the intention or purpose with which he actually makes it. For the intention which is present to his mind when he is constructing the statute, may chance to differ from the end which moves him to establish the statute. Although he conceive that intention with perfect clearness and precision, and although he express it in the statute with similar clearness and precision, he may not pursue the scope, nor adhere to the principle, of the statute with perfect completeness and consistency. Consequently, notwithstanding the clearness and the precision with which he conceives and expresses his actual intention or purpose, the statute may be fitted imperfectly to accomplish the end or purpose by which he is determined to make it. And hence the spurious interpretation, ex ratione legis, through which a statute, unequivocally worded by the lawgiver, is extended or restricted by the judge.

By such extensive or restrictive interpretation the judge may depart from the manifest sense of a statute, in order that he may carry into effect its ratio or scope. But, in these cases, he is not a judge properly interpreting the law, but a subordinate legislator correcting its errors or defects. He supposes the expressions which the lawgiver would have used (or he supposes the provisions which the lawgiver would have made), if the latter had expressed his intention in appropriate terms (or had pursued the scope of the statute in a consistent manner): And those supposed expressions, or those supposed provisions, he substitutes for the clear expressions which the lawgiver has actually used, or for the provisions which the lawgiver has indisputably made. This, however, is not interpretation, but a process of legislative amendment, or a process of legislative correction, which lays all statute law at the arbitrary disposition of the tribunals.

In the process of interpretation (properly so called), the purpose, therefore, is to get at the meaning of the expressions in which the legislator has attempted to convey his intention. For, owing to the abstract form of a statute law, the very terms 630in which it is expressed are necessarily the main index to the legislator’s purpose.

But in the analogous process of induction, by which a rule of law is extracted from judicial decisions, that scrupulous attention to the language used by the legislating judge would commonly defeat the end for which the process is performed. As the general propositions which the decision contains are not commonly expressed with much premeditation, and as they must be taken in connection with all the peculiarities of the case, it follows that the very terms in which those propositions are clothed are not the main index to the ratio decidendi;—to the general rule or principle which that decision established, and which is the governing principle of the case awaiting solution.

In short, a statute law is expressed in general or abstract terms which are parcel of the law itself. And, consequently, the proper end of interpretation is the discovery of the meaning which was actually annexed by the legislator to those very expressions. For if judges could depart ad libitum from the meaning of those expressions, and collect the provisions of the statute from other indicia, they would desert (generally speaking) a more certain, for a less certain guide.

But a rule of law established by judicial decision, exists nowhere in precise expressions, or in expressions which are parcel of the ratio decidendi. The terms or expressions employed by the judicial legislator, are rather faint traces from which the principle may be conjectured, than a guide to be followed inflexibly in case their obvious meaning be perfectly certain.

Broad as the distinction is between the interpretation of statute law and the analogous process of induction by which a rule is extracted from a judicial decision or decisions, the two distinct processes have commonly been confounded by those who have written on the interpretation of the Roman law.

As I have remarked above, a part of Justinian’s Code consists of edictal Constitutions or of proper or statute laws made and promulged by the Emperors as legislators. But a part of it consists of special Constitutions; that is to say, of judicial decisions by the Emperors as the supreme judges of the Empire: whilst the Pandects consist of excerpts from the writings of jurists, which not uncommonly are solutions of cases, and closely analogous to judicial decisions.

[Owing to the sanction imparted to them by the Emperor, they are substantially judicial decisions.]

631Now most of the modem Civilians who have treated of interpretation, have applied to the statute law contained in Justinian’s compilations, and to the decisions and casuistical solutions which the compilations also comprise, the same rules of interpretation or construction.

For example: They have confounded extensive interpretation of statute law with the application of a decided case to a resembling case.

The so-called extensive interpretation of statute law ex ratione legis, is the extension of the provisions of the law to a case which they do not comprise, because the case falls within the scope of the law, although the provisions of the law do not include it. There is truly an extension of the law.

But the application of a decided case to the solution of a similar case, is the direct application of the judiciary law itself, and not the extension of the law agreeably to its reason or scope. For, here, the law cannot be extended agreeably to the reason of the decision, inasmuch as the reason of the decision (or the ground or principle of the decision) is itself the law. The application, therefore, of a decided case to the solution of a resembling case, is the direct subsumption of a case to which the law itself directly applies, and not the extension of a law ex ratione ejus to a case or species obveniens which the law does not embrace.

[v. v. The way in which they have confounded their subject, from not perceiving the distinction to which I have now adverted.

‘Ampliant istam regulam ut turn maxime procedat si ratio in lege⁵⁸ sit expressa; tunc enim non eat extensio sed potius comprehensio. Habetur enim ratio in lege expressa pro lege generali.’⁵⁹]

⁵⁸ Decided case resting upon a ground which (whether it be expressed or not in the case) is in truth the Law.—Marginal Note.

⁵⁹ B. Forster, de Juris Interpretatione, lib. ii. c. 2, quoted by Thibaut, Theorie der logischen Auslegung des römischen Rechts, p. 67.

Again: One of their commonest rules of interpretation—cessante ratione legis, cessat lex ipsa—applies solely to precedents, and does not apply to statute law. For in statute law, the law is one thing, the reason another; the law, as a command, may continue to exist, although its reason has ceased, and the law consequently ought to be abrogated; but there it is, the solemn and unchanged will of the legislator, which the judge should not take upon himself to set aside, though he may think it desirable that it should be altered. But in the case of judiciary law, if the ground of the decision has fallen away or ceased, the ratio decidendi being gone, there is no law left.

632Professor Thibaut of Heidelberg (in his Interpretation of the Roman Law) was the first (I believe) who saw distinctly, that the rules of interpretation which will apply to the edictal Constitutions contained in Justinian’s compilations, have little or no applicability to those judicial decisions (or to those solutions of cases that are analogous to judicial decisions) which the same combinations also embrace.

It is to be regretted that the excellent work of Professor Thibaut is on the interpretation of the Roman law only, not on the interpretation of law in general; for, consequently, owing to the strong peculiarities of Justinian’s compilations it has little to do with the general principles of construction. But I am scarcely acquainted with any book which, within so small a compass, contains so much original thinking. As was said by Gassendi of some work of Hobbes, parvus est libellus, at medullâ scatet.

As being connected with the subject which I am now considering, I will advert to an oversight of Sir Samuel Romilly, in his admirable article in the Edinburgh Review, on Mr. Bentham’s papers relative to Codification.

‘It is very extraordinary, that, with such accurate notions as Paley appears to have had on this subject, he should not have seen, that this “Source of disputation,” as he calls it, was peculiar to an unwritten law. He strangely supposes it to belong equally to the Statute as to the Common Law. “After all the certainty and rest,” he says, “that can be given to points of law, either by the interposition of the Legislature, or the authority of precedents, one principal source of disputation, and into which, indeed, the greater part of legal controversies may be resolved, will remain still, namely, the competition of opposite analogies.” Difficulties undoubtedly often arise in the application of written statutes, and Paley himself has well pointed them out; but they are quite of a different nature from those which attend the administration of the common law, and certainly cannot be surmounted by that competition of opposite analogies which he mentions.’⁶⁰

Now it seems to me, that ‘the competition of opposite analogies’ (if the phrase mean anything) is just as likely to arise on the application of statute law, as on the application of judiciary law. Paley must be speaking (if he mean anything), not of the discovery of the law by interpretation or other 633induction, but of the application of the law, as already ascertained, to the case which awaits solution.

With regard to the process of interpretation, or the analogous process of induction which I have already described, the phrase ‘competition of analogies’ has no meaning. The purpose (in the case of the induction) is to deduce the rule of law from the decided case or cases by which the rule was established. If the rule of law was established by one decided case the rule cannot have been founded on opposite analogies. If it was established by several cases, it was founded on the resembling, and not on the differing properties of those several cases; so that here also, it was not founded on opposite, but on analogous analogies.

But with regard to the application of the law to the cue awaiting solution, ‘the competition of opposite analogies’ may certainly arise. For the case awaiting solution may resemble in some of its points the case or cases to which the rule of law has actually been applied. But it may also resemble in other of its points a case or cases from which the application of the law has been withheld. Now, with reference to the rule of law (or with reference to the applicability of the rule to the case which awaits solution), the resemblances of the case to the cases to which the law has been applied, and the resemblances of the case to the cases from which the law has been withheld, are ‘opposite and competing analogies:’ the first inviting the tribunal to apply the rule; the second admonishing the tribunal that the rule is not applicable.

But this is not peculiar (as Sir S. Romilly supposes) to judiciary law. Wherever law of any kind is to be applied, this ‘competition of opposite analogies’ may embarrass and vex the tribunal.

As being connected with the subject which I am now considering, I will advert to a foolish remark of Sir William Blackstone concerning the judicial decretes of the Roman Emperors.

He tells us that these decretes, ‘contrary to all true forms of reasoning, argue from particulars to generals.’

The truth is, that an imperial decrete of the kind to which Blackstone alludes, is a judicial decision establishing a new principle. Consequently, the application of the new principle to the case wherein it is established, is not the decision of a general by a particular, but the decision of a particular by a general. If he had said that the principle applied is a new 634principle, and, therefore, an ex post facto law with reference to that case, he would say truly. But the same objection (it is quite manifest) applies to our own precedents.

What hindered him from seeing this, was the childish fiction employed by our judges, that judiciary or common law is not made by them, but is a miraculous something made by nobody, existing, I suppose, from eternity, and merely declared from time to time by the judges. This being the case, of course there can be no ex post facto legislation in the English Judiciary law.

Before I proceed to the advantages and disadvantages of judicial legislation, and to the question of codification, I will make a few remarks upon certain topics on which I may touch conveniently at the present point of my Course.

As I observed in former Lectures, judiciary law is suggested by various causes, and often takes from these various causes, various names. With reference to its suggesting causes, it consists mainly of:—

1°. Rules which have grown up by custom or usage, and which become Law by judicial adoption.

Rules which are formed from these by consequence or analogy.⁶² To law formed in this manner the term ‘Customary Law,’ is commonly confined.

2°. Rules which are established by judges ex proprio arbitrio: i.e., according to their own notions of what ought to be Law; whether the standard be utility or any other.

Law formed in this way has received various names. In most of the countries on the Continent it is said to originate in the usus fori, ‘Gerichtsgebrauch.’ In France it is commonly called ‘Jurisprudence.’ In the Roman law it has no peculiar name; ‘Auctoritas,’ etc.: Nor does it seem in that law to have been of any great extent; the use of decided cases as a source of law, having been rendered to a great degree unnecessary by those predeterminations of the Prætors which were contained in their Edicts. In the English Law, it has no peculiar name; the whole of the judicial law being confounded together.

3°. Law fashioned on opinions and practices which obtain amongst lawyers; and which naturally have a great effect upon the decisions of judges.

In Rome, the Jus Civile, strictly so called, was entirely 635formed in this manner. The opinions of experienced jurisconsults were naturally influential with the community and with the courts, and the decisions of the tribunal were frequently fashioned on them. Much law has been thus made in England: by judges adopting the views of authoritative expository writers, or the practice of conveyancers, and enforcing them as law.

4°. Law formed by judicial decisions upon questions which arise out of the statute law.

Decisions on statutes are of two sorts. The judge applies the law to the fact, according to his opinion of the meaning; or (by a process which is generally confounded with interpretation or construction, but which in truth is legislation) he decides according to his own notion of what the legislator ought to have established. By this extensive or restrictive interpretation ratione legis, much judiciary law grows up. A striking example of this is equity, as it is called, of the statute De Donis; that is, its application by judges, to cases coming within the predominating purpose of the statute, though omitted out of its provisions. The Statute of Frauds is another striking example. The decisions of the Courts on this single statute are nearly equal in bulk to the whole of the French civil code. The whole of these decisions are judge-made law introduced on the occasion of pretended applications of the statute.

Much of the law made in our Ecclesiastical Courts originated in this manner, for the law administered in these courts was mainly fashioned upon the civil and canon law. The law obtaining in the different states of Germany for the most part consists of the Roman Law, that is, of the Roman Law as established by the German legislators and tribunals. It is in force, as German law, of course, but it is German Law moulded on a Roman model.

In like manner judiciary law, particularly, for instance, that administered in our Admiralty Courts, often originates in positive international morality. As positive international morality (so-called international law) it has no force within any one nation; but a nation may adopt it and enforce it as positive law within itself.

The natural or customary order in which the law of any country arises, or is founded, seems to be this:

⁶³ Savigny, Vom Beruf, etc. pp. 16-19. Hugo, Enc. pp. 25-28.

3rdly. The addition of other rules drawn from the former by consequence or analogy.

4thly. The introduction of new rules by the judges, proprio arbitrio; and illations from these.

The sovereign legislature by its acts acknowledges the existence of law made by the tribunals, and moulds its own enactments upon it; the application of the law made by the sovereign gives rise to further judicial legislation; and in some cases the sovereign legislature, acting as the supreme judicatory, makes judiciary law by its own judicial decisions.

The conception of a code, or systematic and complete body of statute law, intended to supersede all other law whatever, does not seem to belong to any age less civilised than our own. It is essentially a modern thought.⁶⁴

⁶⁴ Anciently, all collections of Laws (or legal rules) promulged by the legislature, were called Codes. The modern idea of a Code—a complete and exclusive body of law—did not arise till after the middle of the last century. First examples of such Codes: in Prussia, 1747; Austria, 1753; Russia, 1767; France, 1793.

Such can hardly be conceived to have been the purpose of Justinian. It does indeed appear from the Pandects, that he intended them and the code to be the only law thereafter to obtain in the Roman Empire; but we can only marvel at the conceit. For so ill did the compilers of those works accomplish their task, that they were scarcely promulgated before he was obliged to add to them a body of Novels as big as themselves, and to set about a new edition of the Compilation.

This, however, is the only example occurring, as far as I am aware, in ancient times, which can be considered as an approach to the conception of a Code. Cæsar’s idea does not seem to have gone beyond a compilation of the leges of the populus and plebs; a digest of the then existing statute law.

The conceptions entertained of a Code in modern times have generally been as indistinct as Justinian’s.⁶⁵ And this is the chief cause of the imperfections of all recent attempts at codification, and the cause by reason of which the codifiers have left to 637be covered by judiciary law the wilderness which they knew not how to deal with.

⁶⁵ Bentham, Principles, etc. p. 328.

Judiciary and statute law often run into one another. An example of this is a declaratory law. A declaratory law,⁶⁶ though not a decision upon a question of law in the course of judicial procedure (that is, though it has not necessarily any effect upon the interests of determinate parties), has yet the operation of a judicial decision with respect to cases in general. It is not the establishment of a new law, but determines the import of pre-existing law.

⁶⁶ Bentham, Principles, etc. p. 328.

If it introduce a new rule under colour of explaining an old one, it is not in substance a declaratory law; and is then analogous to the cases in which judges made judicial law, under colour of interpreting statute law, or of getting by induction at prior judge-made law.

If the declaratory law relate to an anterior statute, it is in effect a republication of that statute in a more correct form:—in a form which expresses more precisely the real or supposed intention with which the statute was passed. If it relate to judicial law, it converts judicial into statute law; superseding the authority of the decision upon which the judicial law formerly rested. Thus the Pandects of Justinian may be considered as an express declaration by the Legislator, that certain writings which had acquired authority in the tribunals should thenceforth be statute law. [Sed quære, judicial decisions?]

There is the same difference (with regard to the occasion of the declaration) between declaratory laws, that there is between original laws: i.e. A declaratory law is either emitted as a general rule, independently of a particular incident, or on occasion of a particular incident. Laws of the former sort are, declaratory Acts, etc., Edicts of the Prætor, so far as interpreting: Laws of the latter sort, Opinions given by the Roman Emperors at the instance of particular parties; Opinions which Courts of Justice might be authorised to give on occasion of transactions contemplated: Rescripts.⁶⁷

⁶⁷ See p. 519, ante. Falck, § 16. Blackstone, vol. i. p. 86.

The great difference here (as in original legislation) is this; that in the former case the law is not only formally promulged (which is an accident) but is given in abstract, in the form of a general proposition or propositions detached from any actual incident: in the latter, it is given as part of an opinion or decision upon a particular incident; and must always be taken into 638consideration jointly with that incident, in order that we may form a correct estimate of its import.

The Rescripts of the Roman Emperors, though issuing from the legislature, were not statute law. They were either decisions on appeal declaratory; or instructions how to decide, issued to inferior judicatories.

In England we have nothing analogous to this: Acts of Parliament relating to particular cases are not decisions in the way of appeal, but privilegia: and the House of Lords, though it sit as a Court of Judicature, is not the legislature, but only a branch of it. [Provision in Statute of Treasons.⁶⁸]

⁶⁸ Blackstone, vol iv. pp. 84, 85. See ante, p. 520.

In France, perhaps the judicial decisions of the Conseil du Roi, which, before the Revolution, performed the functions of the present Court of Cassation, may have resembled, in this respect, the rescripts of the Roman Emperors. But whether such decisions were given in the name of the King (who for a century or two before the Revolution was substantially the legislature) I am not able to determine. If not supposed to proceed from him by the advice of his Conseil, but to be the act of the Conseil itself, sitting as a Court of Cassation, they were not analogous to rescripts.

Declaratory laws are sometimes provoked by a particular case, and are so far analogous to judicial decisions.^{68 [see above]} Such are the laws made by the Prussian Law Commission. If the judges, whose duty it is to decide according to the provisions of the Prussian Code, differ in their interpretation of it, and cannot unravel the meaning, the decision of the last Court of Appeal is referred to the Law Commission, who have power, not to alter the decision as respects the particular case, but to amend the law in futurum, and what they promulge is a law declaratory of what shall be deemed law in future on the occurrence of a similar case.

[The matter contained in the following pages formed no part of the Lectures. It was found among loose papers.—S. A.]

Where there is no rule in the system applicable to the case, the judge virtually makes one, if he decides at all, or decides on any general ground.

Now where the judge makes a judiciary rule, he may build it on any of various grounds, or derive it from any of various sources: e.g. a custom not having force of law, but obtaining 639throughout the community, or in some class of it; a maxim of international law; his own views of what law ought to be (be the standard which he assumes, general utility or any other).

But it often (perhaps, most commonly) happens, that he derives the new rule, by a consequence built on analogy, from a rule or ru1es actually part of the system. And it is to the creation of law thus derived from pre-existing law, that the competition of opposite analogies to which judicial legislation is liable, is peculiarly, if not exclusively, incident.

Law thus derived from pre-existing law, has received various names. It is styled by Hale, law formed by illations on anterior law:⁶⁹ by others, law derived from pre-existing law, by consequence or analogy: by others, jus quod ex jure efficitur argumentando.⁷⁰ By others it is styled law built upon technical grounds: i.e. upon grounds like those of the rules from which it is derived, rather than on considerations of utility which regard the actual state of the community.

⁶⁹ Hale, Hist. Com. Law, ch. iv. sub fine.

⁷⁰ Mühlenbruch, vol. i. lib. i. § 42.

The judge makes, and applies to the subjects wanting a ru1e, a rule analogous to an existing rule (statute or judiciary) which regards analogous subjects. E.g.: The extension of a statute unequivocally expressed, to cases embraced by its scope, but omitted by the lawgiver; or its extension to subjects not existing when it was made, but analogous to subjects embraced by its provisions or scope. Or (supposing that promissory notes preceded bills of exchange), the rules applicable to the latter were formed by consequence and analogy from rules regarding the former.

In every case, therefore, the new rule thus derived is applied to some species or sort of a given genus or kind.

But the rule may be derived from a rule regarding generally the whole genus, or from a rule regarding specially some of its species. E.g.: A new rule regarding contracts of a species or sort, may be derived from a rule regarding contracts generally, or from a rule regarding specially some other species of contracts. Considering the way in which law is gradually built out, the latter is the more ordinary process.

In either case, the new rule is derived from the pro-existing rule by consequence and analogy, or rather by a consequence founded on analogy. For the new rule is made what it is, in consequence of the existence of a similar rule applying to subjects which are analogous to (or of the same genus with) the subjects which itself particularly concerns.

The new rule is formed by consequence from the anterior rule. The subjects of the new rule are analogous to those of the old one. But, by reason of the specific difference of the species or sort which its peculiar subjects belong to, the new rule is different from, as well as like, the old one.

However, where the new rule is formed from an old rule regarding the genus generally, the new rule is not co-ordinate with the old one, but is included under it, as the minor of a syllogism is included under the major. But where the new rule is derived from an old rule specially regarding a species or sort, the new rule is merely co-ordinate with the old and is not included in it as a consequence.

And hence probably the difference between rules formed by consequence, and rules formed by analogy.

[Sed quære. For, if there were merely a consequence, in the case of the generic rule, there would not be a new rule, but merely a subsumption of the new species under the old one.]

Subjects calling for a rule, may be like, in some respects, to subjects of anterior rule A; but, in other respects, to subjects of anterior rule B, which is essentially different from A.

The two likenesses are competing analogies. One inviting the judge to model the rule in projection on A; and the other inviting him to model it on B: one inviting him to decide the case analogously (but not exactly similarly) to decisions by A; and the other, etc.

This is the competition specially contemplated by Paley.—He supposes a question which can only be brought wtthin any fixed rule by analogy, i.e. which ought to be decided by a rule analogous to a fixed or existing rule. For, if the case were brought within a fixed rule, it would be directly subsumed under that rule, and the difficulty would not exist. He commits the usual mistake of supposing that a rule can be extended. Like the mistake of supposing that the judge extends a statute, when he ekes it out by a judiciary rule.

It has been supposed by Sir Samuel Romilly that the competition of opposite analogies could not arise, if the system of law were entirely statute (codified or not).

Now with regard to that competition which is incident to the application of law, it is manifestly incident to statute law. For statutes may be inconsistent inter se, or a single statute may be inconsistent with itself. Nor is direct legislation, more 641than judicial, free from a competition of analogies. For a statute, like a judiciary rule, is often derived, by a consequence founded on analogy, from an anterior statute or an anterior judiciary rule.

A remarkable example of this is furnished by the legislation of the Prætors, by whom most of the working civil law was formed. Now though they legislated directly (or by way of what the French would call arrêts généraux et réglementaires), they legislated, commonly, agreeably to the maxim which has guided the judicial legislation of our own Chancellors, ‘Æquitas sequitur legem:’⁷¹ that is to say, the law which they made, was made by consequence and analogy to the jus civile or common law, much more than in pursuance of their own views of public utility. Though this last was consulted too, or their æquitas would have been nugatory.

⁷¹ Digest, xxii. 5 (De Testibus), l. 14.

Nothing, indeed, can be more natural, than that legislators, direct or judicial (especially if they be narrow-minded, timid, and unskilful), should lean as much as they can on the examples set by their predecessors. The internal history of almost every system of law, consists mainly in tracing the course wherein the system was formed by successive illations.

Sir Samuel Romilly supposes that the competition of opposite analogies is a means of surmounting the difficulty. It is, in truth, the difficulty to be surmounted. He falls into the mistake of confounding the competition incident to the application, with the competition incident to the creation, of law. This arose from his assuming unconsciously at the moment (against what he had shewn in the text) that common or judiciary law, when virtually made, is only administered or applied.