LECTURE XXXVIII.
GROUNDLESS OBJECTIONS TO JUDICIAL LEGISLATION.
Having touched upon a few of the numerous differences which distinguish statute from judiciary law, I pass to 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 will first consider some groundless objections which are made to judiciary law. I then will remark on some of the evils 642with which it really is pregnant. And having remarked on those evils, I will proceed to the scabrous question of codification.
Bentham’s objection to judiciary law, that it is not law.
It seems to be denied by Bentham, that judiciary law is properly law: that is to say, that it is law imperative. He says it consists, at the most, of quasi-commands: of objects not commands, but merely analogous to commands.
This objection I have partly answered in preceding lectures. I will, however, advert to it, for a moment, in the present place.
It appears to me that judiciary law, whether made by the sovereign or by subordinate judges, quadrates with Bentham’s own definition of a genuine but tacit command, as given in a note to his ‘Fragment on Government.’ Where it is perfectly well known to be the will of the legislator that the principles or grounds of judicial decisions should be observed as ruIes of conduct by the subjects, and that they should be punished for violating them, the intimation of the legislator’s will is as complete as in any other case. The ratio decidendi of a decision may, perhaps, indeed be that properly called not a law, but a norma or model, which the law obliges you to observe, the law itself being properly the intimation of the legislator’s will. But this would be equally a reason for excluding from the name law, all the expository part of statute law; for instance, the description of the act which is to be done or forborne, previously to ordering that it be done or forborne.
A second groundless objection to judiciary law.
Another objection to judicial legislation which is often insisted upon (and which is urged by Sir Samuel Romilly, in the article already referred to), is also (I think) founded in mistake. It is objected to judicial legislation, that where subordinate judges have the power of making laws, the community has little or no control over those who make the laws by which its conduct must be governed. Now this objection, it is manifest, is not an objection to judiciary law, but to law proceeding from authors (judicial or not) who are not sufficiently responsible to the bulk or mass of the community. It applies to statute law made by the Sovereign directly, in case the supreme government be purely monarchical, or in case it consist of a number with interests adverse to the majority. It applies to statute law made by subordinate judges (or made directly by any subordinate legislature), in case that subordinate author be the creature of a monarch or oligarchy, or, for any reason, be too independent of the people. It applies (it is true), to the decretes of the Roman Emperors, acting as supreme judges: but 643it applies to the Edictal Constitutions of the same Emperors or Princes, acting as sovereign legislators.
In short, the objection is not an objection to judicial legislation, but to any legislation of any parties who are not sufficiently controlled by positive law, or by the law (improperly so called) which general opinion imposes.
As aimed particularly at English judiciary law, the objection in question amounts to this:—that the judges are made by the King, and not by the people or their representatives; and therefore, are prone to regard the sinister interests of their maker, rather than the general interests, or the interests of the community at large.
But the objection in question, as aimed particularly at English judiciary law, would apply to statute law, made by the English judges after the manner of the Roman Prætors. It would apply, at least, to such statute law, in a considerable degree. For a legislator going to work in the way of judicial legislation, has certainly more opportunities of covering a sinister intent, than a legislator who sets a rule directly and professedly. A statute law being expressed in an abstract or general form, its scope or purpose is commonly manifest. In case, therefore, its purpose be pernicious, its author cannot escape from general censure. But a law made judicially being implicated with a peculiar case, and its purpose not being expressed in any determinate shape, its author can retract and disavow, with comparative ease, in case his intent be dishonest, and excite attention and criticism.
It is a remark of Kant, that the expression in abstract and general terms of a given maxim or principle, affords a proof (or a presumption), that the maxim or principle, as a maxim or principle, is consonant to truth and reason. ‘Der allgemeine Ausdruck einer Maxime zum Beweise dient, sie sey als Maxime vernünftig.’—It certainly affords a proof (or a presumption), that, in the opinion of the party who so expresses the maxim, the maxim is consonant to reason, and may be laid open and bare to the examination of others.
And, moreover, the objection in question, as aimed particularly at English judiciary law, is not an objection to judicial legislation, but an objection to the manner in which the judges are appointed. If their appointment by the crown render them obnoxious to its influence, and if their obnoxiousness to the influence of the crown produce judicial legislation adverse to the general interests, let their appointment be vested in some party 644or another whose interests do not conflict with those of the community at large.
In the last result, indeed, the objection in question, as aimed particularly at English judiciary law, is virtually an objection to the constitution or conduct of the sovereign legislature of Britain. For the judicial law made by the English judges (like the statute law made by the Roman Prætors), has been formed under the eyes of the sovereign legislature, has been made with the acquiescence of the sovereign legislature, and has been confirmed, in innumerable instances, by its explicit or tacit adoption in statutes passed by itself.
In short, the objection which I now am considering, is not an objection to judiciary law. It is an objection to judiciary law (or to any law) which is made by the direct establishment, or by the express or tacit authority, of a bad sovereign government: of a government whose interests are adverse to those of the generality of its subjects; or which is too ignorant and incapable, or too indifferent and lazy, to conduct or inspect advantageously the important business of legislation.
A third groundless objection to judiciary law.
Another current objection to judiciary law, is also bottomed, it appears to me, upon a complete misapprehension of its nature. It supposes that judicial legislators legislate arbitrarily: that the body of the law by which the community is governed, is, therefore, varying and uncertain: and that the body of the law for the time being is, therefore, incoherent.
Now this may be true, to some extent, of supreme judicial legislation, for the Sovereign in the character of judge (like the Sovereign in the character of legislator) is controlled by nothing but the opinions or sentiments of the community.
But, even in respect of supreme legislation, this objection (like the former) is not peculiarly applicable to judiciary law. It is equally applicable to statute law made directly by the sovereign legislature.
To judiciary law made by subordinate judges (which, in almost every community, forms the greater portion of judiciary law) the objection in question will hardly apply at all. For the arbitrium of subordinate judges (like that of the sovereign legislature) is controlled by public opinion. It is controlled, moreover, by the sovereign legislature: under whose inspection their decisions are made: by whose authority their decisions may be reversed: and by whom their misconduct may be punished. Their arbitrium is controlled particularly by courts 645of appeal: by whose judgments their decisions may be reversed: and who may point them out to general disapprobation, or may mark them out as fit objects for legal penalties.
And (admitting that the objection will apply to that judiciary law which is made directly by subordinate judges) it also will apply, with a few modifications, to all statute law which is established by subordinate authors.
The objection, therefore, in question, is an objection to subordinate legislation, rather than to judiciary law.
But, owing to the restraints to which I have just adverted, it is clear that subordinate judges will rarely legislate arbitrarily, whether they legislate directly (in the manner of the Prætors by their Edicts) or legislate indirectly (in the manner of our own Courts). Where subordinate judges subvert existing law, they commonly are doing that which the opinion of the community requires; to which the sovereign legislature expressly or tacitly consents; and which the sovereign legislature would do directly, if it cared sufficiently for the general interests, or were competent to the business of legislation.
Before I quit the topic which I am immediately considering, I will advert to another cause which controls the arbitrium of judges, and makes the rules which they establish by their decisions (or the rules which they establish by direct legislation) consonant with existing law, and consonant with one another.
The cause in question is the influence of private lawyers, with the authority which is naturally acquired by their professional opinions and practices. The supervision and censure of the bar, and of other practitioners of the law, prevent deviations from existing law, unless they be consonant to the interests of the community, or, at least, to the interests of the craft. And though the interests of the craft are not unfrequently opposed to the interests of the community, the two sets of interests do, in the main, chime.
The judiciary law made by the tribunals, is, in effect, the joint product of the legal profession, or rather of the most experienced and most skilful part of it: the joint product of the tribunals themselves, and of the private lawyers who by their cunning in the law have gotten the ear of the judicial legislators. In the somewhat disrespectful language of Mr. Bentham, it is not the product of judge only, but it is the joint product of Judge and Co. So great is the influence of the general opinion of the profession, that it frequently forces upon the Courts the 646adoption of a rule of law, by a sort of moral necessity. When the illations or anticipations of lawyers as to what the Courts would probably decide if the case came before them, has been often acted upon, so many interests are adjusted to it, that the Courts are compelled to make it law. What a howl would be set up (and not unjustly) if the Courts were to disregard the established practice of conveyancers; although, until sanctioned by judicial decisions, it is not strictly law. Being constantly acted upon, and engaging a vast variety of incidents in its favour, it performs the functions of a law, and will probably become law as the particular cases arise.
The way in which law is made by private lawyers, is well described in the Digests, by an excerpt from Pomponius. ‘Constare non potest jus, nisi sit aliquis jurisperitus, per quem possit quotidie in melius produci.’ This is almost inevitably the growth of law. The laity (or non-lawyer part of the community) are competent to conceive the more general rules: but none but lawyers (or those whose minds are constantly occupied with the rules) can produce (or evolve) those numerous consequences which the rules imply, or can give to the rules themselves the requisite precision.
Herr von Savigny describes modern law as composed of two elements, the one element being a part of the national life itself, and the other element being the product of the lawyers’ craft. The first he names the political, and the last the technical element.
Independently of the checks which I have just mentioned, judges are naturally determined to abide by old rules, or to form new ones, by consequence from, or analogy to, the old.
(v. v.) They are naturally determined by two causes.
1. A regard for the interests and expectations which have grown up under established rules: or under consequences and analogies deducible from them.
2. A perception of consequence and analogy: which determines the understanding, independently of any other consideration.
The truth is, that too great a respect for established rules, and too great a regard for consequence and analogy, has generally been shown by the authors of judiciary law. Where the introduction of a new rule would interfere with interests and expectations which have grown out of established ones, it is clearly 647incumbent on the Judge stare decisis; since it is not in his power to indemnify the injured parties. But it is much to be regretted that Judges of capacity, experience and weight, have not seized every opportunity of introducing a new rule (a rule beneficial for the future), wherever its introduction would have no such effect. This is the reproach I should be inclined to make against Lord Eldon.
A striking example of this backwardness of Judges to innovate, is to be found in the origin of the distinction between law and equity; which arose because the Judges of the Common Law Courts would not do what they ought to have done, namely to model their rules of law and of procedure to the growing exigencies of society, instead of stupidly and sulkily adhering to the old and barbarous usages. Equity, when it arose, has remained equally barbarous from the same cause: the rule æquitas sequitur legem has been too much regarded; a rule which, if followed literally, would leave nothing for the Courts of Equity to perform.
Owing to the causes to which I now have adverted, and to others which I pass in silence, there is more of stability and coherency in judiciary law, than might, at the first blush, be imagined.
And here I must stop for the present. In my next Lecture, I will remark on some of the evils with which judiciary law is really pregnant: and I will also advert (as fully as my limits will allow) to the question of codification.
These two topics, with a few others on which I must touch, will fill a long discourse. With that discourse, I shall close my disquisitions on the sources of law, and on the modes in which it begins and ends.