SUMMARY.
Historical importance of customary law.
Reasons for the recognition of customary law.
Requisites of a valid custom:
1. Reasonableness. 2. Opinio necessitatis. 3. Consistency with statute law. 4. Immemorial antiquity (unless general).
History of this rule.
5. Consistency with the common law (unless immemorial).
Conventional customs.
Theories of the operation of custom as a source of law:
1. Savigny’s—custom a formal source. 2. Austin’s—custom an historical source.
Relations between custom and prescription.
CHAPTER IX.
PRECEDENT.
§ 61. The Authority of Precedents.
The importance of judicial precedents has always been a distinguishing characteristic of English law. The great body of the common or unwritten law is almost entirely the product of decided cases, accumulated in an immense series of reports extending backwards with scarcely a break to the reign of Edward the First at the close of the thirteenth century. Orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial decisions as merely evidence of custom and of the law derived therefrom. This, however, was never much better than an admitted fiction. In practice, if not in theory, the common law in England has been created by the decisions of English judges. Neither Roman law, however, nor any of those modern systems which are founded upon it, allows any such place or authority to precedent. They allow to it no further or other influence than that which is possessed by any other expression of expert legal opinion. A book of reports and a text-book are on the same level. They are both evidences of the law; they are both instruments for the persuasion of judges; but neither of them is anything more.[[151]] English law, on the other hand, draws a sharp distinction between them. A judicial precedent speaks in England with authority; it is not merely evidence of the law but a source of it; and the courts are bound to follow the law that is so established.
It seems clear that we must attribute this feature of English law to the peculiarly powerful and authoritative position which has been at all times occupied by English judges. From the earliest times the judges of the king’s courts have been a small and compact body of legal experts. They have worked together in harmony, imposing their own views of law and justice upon the whole realm, and establishing thereby a single homogeneous system of common law. Of this system they were the creators and authoritative interpreters, and they did their work with little interference either from local custom or from legislation. The centralization and concentration of the administration of justice in the royal courts gave to the royal judges a power and prestige which would have been unattainable on any other system. The authority of precedents was great in England because of the power, the skill, and the professional reputation of the judges who made them. In England the bench has always given law to the bar; in Rome it was the other way about, for in Rome there was no permanent body of professional judges capable of doing the work that has been done for centuries in England by the royal courts.
§ 62. Declaratory and Original Precedents.
In proceeding to consider the various kinds of precedents and the methods of their operation, we have in the first place to distinguish between those decisions which are creative of the law and those which are merely declaratory of it. A declaratory precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. In the former case the rule is applied because it is already law; in the latter case it is law for the future because it is now applied. In any well-developed system such as that of modern England, declaratory precedents are far more numerous than those of the other class; for on most points the law is already settled, and judicial decisions are therefore commonly mere declarations of pre-existing principles. Original precedents, however, though fewer in number, are greater in importance. For they alone develop the law; the others leave it as it was, and their only use is to serve as good evidence of it for the future. Unless required for this purpose, a merely declaratory decision is not perpetuated as an authority in the law reports. When the law is already sufficiently well evidenced, as when it is embodied in a statute or set forth with fulness and clearness in some comparatively modern case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our case-law.
It must be understood, however, that a declaratory precedent is just as truly a source of law as is one belonging to the other class. The legal authority of each is exactly the same. Speaking generally, the authority and legal validity of a precedent do not depend on whether it is, or is not, an accurate statement of previously existing law. Whether it is or is not, it may establish as law for the future that which it now declares and applies as law. The distinction between the two kinds turns solely on their relation to the law of the past, and not at all on their relation to that of the future. A declaratory precedent, like a declaratory statute, is a source of law, though it is not a source of new law. Here, as elsewhere, the mere fact that two sources overlap, and that the same legal principle is established by both of them, does not deprive either of them of its true nature as a legal source. Each remains an independent and self-sufficient basis of the rule.
We have already referred to the old theory that the common law is customary, not case-law. This doctrine may be expressed by saying that according to it all precedents are declaratory merely, and that their original operation is not recognised by the law of England. Thus Hale says in his History of the Common Law:—
“It is true the decisions of courts of justice, though by virtue of the laws of this realm they do bind as a law between the parties thereto, as to the particular case in question, till reversed by error or attaint, yet they do not make a law properly so called: for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is; especially when such decisions hold a consonancy and congruity with resolutions and decisions of former times.”[[152]]
Hale, however, is evidently troubled in mind as to the true position of precedent, and as to the sufficiency of the declaratory theory thus set forth by him, for elsewhere he tells us inconsistently that there are three sources of English law, namely, (1) custom, (2) the authority of Parliament, and (3) “the judicial decisions of courts of justice consonant to one another in the series and succession of time.”[[153]]
In the Court of Chancery this declaratory theory never prevailed, nor indeed could it, having regard to the known history of the system of equity administered by that court. There could be no pretence that the principles of equity were founded either in custom or legislation, for it was a perfectly obvious fact that they had their origin in judicial decisions. The judgments of each Chancellor made law for himself and his successors.
“It must not be forgotten,” says Sir George Jessel, “that the rules of courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time—altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them. No doubt they were invented for the purpose of securing the better administration of justice, but still they were invented.”[[154]]
Both at law and in equity, however, the declaratory theory must be totally rejected if we are to attain to any sound analysis and explanation of the true operation of judicial decisions. We must admit openly that precedents make law as well as declare it. We must admit further that this effect is not merely accidental and indirect, the result of judicial error in the interpretation and authoritative declaration of the law. Doubtless judges have many times altered the law while endeavouring in good faith to declare it. But we must recognise a distinct law-creating power vested in them and openly and lawfully exercised. Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it.
§ 63. Authoritative and Persuasive Precedents.
Decisions are further divisible into two classes, which may be distinguished as authoritative and persuasive. These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice. An authoritative precedent is one which judges must follow whether they approve of it or not. It is binding upon them and excludes their judicial discretion for the future. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical. The former establish law in pursuance of a definite rule of law which confers upon them that effect, while the latter, if they succeed in establishing law at all, do so indirectly, through serving as the historical ground of some later authoritative precedent. In themselves they have no legal force or effect.
The authoritative precedents recognised by English law are the decisions of the superior courts of justice in England. The chief classes of persuasive precedents are the following:
(1) Foreign judgments, and more especially those of American courts.[[155]]
(2) The decisions of superior courts in other portions of the British Empire, for example, the Irish courts.[[156]]
(3) The judgments of the Privy Council when sitting as the final court of appeal from the Colonies.[[157]]
(4) Judicial dicta, that is to say, statements of law which go beyond the occasion, and lay down a rule that is irrelevant or unnecessary for the purpose in hand. We shall see later that the authoritative influence of precedents does not extend to such obiter dicta, but they are not equally destitute of persuasive efficacy.[[158]]
§ 64. The Absolute and Conditional Authority of Precedents.
Authoritative precedents are of two kinds, for their authority is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. It has a legal claim to implicit and unquestioning obedience. Where, on the other hand, a precedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it. In all ordinary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice. Otherwise it must be followed, even though the court which follows it is persuaded that it is erroneous or unreasonable. The full significance of this rule will require further consideration shortly. In the meantime it is necessary to state what classes of decisions are recognised by English law as absolutely, and what as merely conditionally authoritative.
Absolute authority exists in the following cases:—
(1) Every court is absolutely bound by the decisions of all courts superior to itself. A court of first instance cannot question a decision of the Court of Appeal, nor can the Court of Appeal refuse to follow the judgments of the House of Lords.
(2) The House of Lords is absolutely bound by its own decisions. “A decision of this House once given upon a point of law is conclusive upon this House afterwards, and it is impossible to raise that question again as if it was res integra and could be re-argued, and so the House be asked to reverse its own decision.”[[159]]
(3) The Court of Appeal is, it would seem, absolutely bound by its own decisions and by those of older courts of co-ordinate authority, for example, the Court of Exchequer Chamber.[[160]]
In all other cases save these three, it would seem that the authority of precedents is merely conditional. It is to be noticed, however, that the force of a decision depends not merely on the court by which it is given but also on the court in which it is cited. Its authority may be absolute in one court, and merely conditional in another. A decision of the Court of Appeal is absolutely binding on a court of first instance, but is only conditionally binding upon the House of Lords.
§ 65. The Disregard of a Precedent.
In order that a court may be justified in disregarding a conditionally authoritative precedent, two conditions must be fulfilled. In the first place, the decision must, in the opinion of the court in which it is cited, be a wrong decision; and it is wrong in two distinct cases: first, when it is contrary to law, and secondly, when it is contrary to reason. It is wrong as contrary to law, when there is already in existence an established rule of law on the point in question, and the decision fails to conform to it. When the law is already settled, the sole right and duty of the judges is to declare and apply it. A precedent must be declaratory whenever it can be, that is to say, whenever there is any law to declare.
But in the second place, a decision may be wrong as being contrary to reason. When there is no settled law to declare and follow, the courts may make law for the occasion. In so doing, it is their duty to follow reason, and so far as they fail to do so, their decisions are wrong, and the principles involved in them are of defective authority. Unreasonableness is one of the vices of a precedent, no less than of a custom and of certain forms of subordinate legislation.
It is not enough, however, that a decision should be contrary to law or reason, for there is a second condition to be fulfilled before the courts are entitled to reject it. If the first condition were the only one, a conditionally authoritative precedent would differ in nothing from one which is merely persuasive. In each case the precedent would be effective only so far as its own intrinsic merits commended it to the minds of successive judges. But where a decision is authoritative, it is not enough that the court to which it is cited should be of opinion that it is wrong. It is necessary in innumerable cases to give effect to precedents notwithstanding that opinion. It does not follow that a principle once established should be reversed simply because it is not as perfect and rational as it ought to be. It is often more important that the law should be certain than that it should be ideally perfect. These two requirements are to a great extent inconsistent with each other, and we must often choose between them. Whenever a decision is departed from, the certainty of the law is sacrificed to its rational development, and the evils of the uncertainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the erroneous doctrine. The precedent, while it stood unreversed, may have been counted on in numerous cases as definitely establishing the law. Valuable property may have been dealt with in reliance on it; important contracts may have been made on the strength of it; it may have become to a great extent a basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand inviolate none the less. Communis error facit jus.[[161]]
“It is better,” said Lord Eldon, “that the law should be certain than that every judge should speculate upon improvements in it.”[[162]]
It follows from this that, other things being equal, a precedent acquires added authority from the lapse of time. The longer it has stood unquestioned and unreversed, the more harm in the way of uncertainty and the disappointment of reasonable expectations will result from its reversal. A decision which might be lawfully overruled without hesitation while yet new, may after the lapse of a number of years acquire such increased strength as to be practically of absolute and no longer of merely conditional authority. This effect of lapse of time has repeatedly received judicial recognition.
“Viewed simply as the decision of a court of first instance, the authority of this case, notwithstanding the respect due to the judges who decided it, is not binding upon us; but viewed in its character and practical results, it is one of a class of decisions which acquire a weight and effect beyond that which attaches to the relative position of the court from which they proceed. It constitutes an authority which, after it has stood for so long a period unchallenged, should not, in the interests of public convenience, and having regard to the protection of private rights, be overruled by this court except upon very special considerations. For twelve years and upwards the case has continued unshaken by any judicial decision or criticism.”[[163]]
“When an old decided case has made the law on a particular subject, the Court of Appeal ought not to interfere with it, because people have considered it as establishing the law and have acted upon it.”[[164]]
The statement that a precedent gains in authority with age must be read subject to an important qualification. Up to a certain point a human being grows in strength as he grows in age; but this is true only within narrow limits. So with the authority of judicial decisions. A moderate lapse of time will give added vigour to a precedent, but after a still longer time the opposite effect may be produced, not indeed directly, but indirectly through the accidental conflict of the ancient and perhaps partially forgotten principle with later decisions. Without having been expressly overruled or intentionally departed from, it may become in course of time no longer really consistent with the course of judicial decision. In this way the tooth of time will eat away an ancient precedent, and gradually deprive it of all its authority. The law becomes animated by a different spirit and assumes a different course, and the older decisions become obsolete and inoperative.
To sum the matter up, we may say that to justify the disregard of a conditionally authoritative precedent, it must be erroneous, either in law or in reason, and the circumstances of the case must not be such as to make applicable the maxim, Communis error facit jus. The defective decision must not, by the lapse of time or otherwise, have acquired such added authority as to give it a title to permanent recognition notwithstanding the vices of its origin.
The disregard of a precedent assumes two distinct forms, for the court to which it is cited may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. A refusal to follow a precedent, on the other hand, is an act of co-ordinate, not of superior jurisdiction. Two courts of equal authority have no power to overrule each other’s decisions. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other. The legal antinomy thus produced must be solved by the act of a higher authority, which will in due time decide between the competing precedents, formally overruling one of them, and sanctioning the other as good law. In the meantime the matter remains at large, and the law uncertain.
§ 66. Precedents Constitutive, not Abrogative.
We have already seen the falsity of the theory that all precedents are declaratory. We have seen that they possess a distinct and legally recognised law-creating power. This power, however, is purely constitutive and in no degree abrogative. Judicial decisions may make law, but they cannot alter it, for where there is settled law already on any point the duty of the judges is to apply it without question, and they have no authority to substitute for it law of their own making. Their legislative power is strictly limited to supplying the vacancies of the legal system, to filling up with new law the gaps which exist in the old, to supplementing the imperfectly developed body of legal doctrine.
This statement, however, requires two qualifications. In the first place, it must be read subject to the undoubted power of the courts to overrule or disregard precedents in the manner already described. In its practical effect this is equivalent to the exercise of abrogative power, but in legal theory it is not so. The overruling of a precedent is not the abolition of an established rule of law; it is an authoritative denial that the supposed rule of law has ever existed. The precedent is so treated not because it has made bad law, but because it has never in reality made any law at all. It has not conformed to the requirements of legal efficacy. Hence it is that the overruling of a precedent, unlike the repeal of a statute, has retrospective operation. The decision is pronounced to have been bad ab initio. A repealed statute, on the contrary, remains valid and applicable as to matters arising before the date of its repeal. The overruling of a precedent is analogous not to the repeal of a statute, but to the judicial rejection of a custom as unreasonable or as otherwise failing to conform to the requirements of customary law.
In the second place, the rule that a precedent has no abrogative power must be read subject to the maxim, Quod fieri non debet, factum valet. It is quite true that judges ought to follow the existing law whenever there is any such law to follow. They are appointed to fulfil the law, not to subvert it. But if by inadvertence or otherwise this rule is broken through, and a precedent is established which conflicts with pre-existing law, it does not follow from this alone that this decision is destitute of legal efficacy. For it is a well-known maxim of the law that a thing which ought not to have been done may nevertheless be valid when it is done. If, therefore, a precedent belongs to the class which is absolutely authoritative, it does not lose this authority simply because it is contrary to law and ought not to have been made. No court, for example, will be allowed to disregard a decision of the House of Lords on such a ground; it must be followed without question, whether it is in harmony with prior law or not. So also with those which are merely conditionally authoritative. We have already seen that error is only one of two conditions, both of which are requisite to render allowable the disregard of such a precedent, and in this respect it makes no difference whether the error consists in a conflict with law or in a conflict with reason. It may well be better to adhere to the new law which should not have been made than to recur to the old law which should not have been displaced.
§ 67. Grounds of the Authority of Precedents.
The operation of precedents is based on the legal presumption of the correctness of judicial decisions. It is an application of the maxim, Res judicata pro veritate accipitur. A matter once formally decided is decided once for all. The courts will listen to no allegation that they have been mistaken, nor will they reopen a matter once litigated and determined. That which has been delivered in judgment must be taken for established truth. For in all probability it is true in fact, and even if not, it is expedient that it should be held as true none the less. Expedit reipublicae ut sit finis litium. When, therefore, a question has once been judicially considered and answered, it must be answered in the same way in all subsequent cases in which the same question again arises. Only through this rule can that consistency of judicial decision be obtained, which is essential to the proper administration of justice. Hence the effect of judicial decisions in excluding the arbitrium judicis for the future, in providing predetermined answers for the questions calling for consideration in future cases, and therefore in establishing new principles of law.
The questions to which judicial answers are required are either questions of law or of fact. To both kinds the maxim, Res judicata pro veritate accipitur, is applicable. In the case of questions of law, this maxim means that the court is presumed to have correctly ascertained and applied the appropriate legal principle. The decision operates, therefore, as proof of the law. It is, or at all events is taken to be, a declaratory precedent. If the law so declared is at all doubtful, the precedent will be worth preserving as useful evidence of it. But if the law is already clear and certain, the precedent will be useless; to preserve it would needlessly cumber the books of reports, and it will be allowed to lapse into oblivion.
In the case of questions of fact, on the other hand, the presumption of the correctness of judicial decisions results in the creation of new law, not in the declaration and proof of old. The decision becomes, in a large class of cases, an original precedent. That is to say, the question thus answered ceases to be one of fact, and becomes for the future one of law. For the courts are now provided with a predetermined answer to it, and it is no longer a matter of free judicial discretion. The arbitrium judicis is now excluded by one of those fixed and authoritative principles which constitute the law.
For example, the meaning of an ambiguous statute is at first a pure question of fact. When for the first time the question arises whether the word “cattle” as used by the statute includes horses, the court is bound by no authority to determine the matter in one way or the other. The occasion is one for the exercise of common sense and interpretative skill. But when the question has once been decided, it is for the future one of law and no longer one of fact; for it is incumbent on the courts in subsequent cases to act on the maxim Res judicata pro veritate accipitur, and to answer the question in the same way as before.
The operation of original precedents is, therefore, the progressive transformation of questions of fact into questions of law. Ex facto oritur jus. The growth of case-law involves the gradual elimination of that judicial liberty to which it owes its origin. In any system in which precedents are authoritative the courts are engaged in forging fetters for their own feet. There is of course a limit to this process, for it is absurd to suppose that the final result of legal development will be the complete transformation of all questions of fact into questions of law. The distinction between law and fact is permanent and essential. What, then, is the limit? To what extent is precedent capable of effecting this absorption of fact into law?
In respect of this law-creating operation of precedents, questions of fact are divisible into two classes. For some of them do, and some do not, admit of being answered on principle. The former are those the answer to which is capable of assuming the form of a general principle: the latter are those the answer to which is necessarily specific. The former are answered by way of abstraction, that is to say, by the elimination of the immaterial elements in the particular case, the result being a general rule applicable not merely to that single case, but to all others which resemble it in its essential features. The other class of questions consists of those in which no such process of abstraction, no such elimination of immaterial elements, as will give rise to a general principle, is possible. The answer to them is based on the circumstances of the concrete and individual case, and therefore produces no rule of general application. The operation of precedent is limited to one only of these classes of questions. Judicial decisions are a source of law only in the case of those questions of fact which admit of being answered on principle. These only are transformed by decision into questions of law, for in this case only does the judicial decision give rise to a rule which can be adopted for the future as a rule of law. Those questions which belong to the other class are permanently questions of fact, and their judicial solution leaves behind it no permanent results in the form of legal principles.
For example, the question whether the defendant did or did not make a certain statement is a question of fact, which does not admit of any answer save one which is concrete and individual. It cannot be answered on principle. It necessarily remains, therefore, a pure question of fact; the decision of it is no precedent, and establishes no rule of law. On the other hand, the question whether the defendant in making such a statement was or was not guilty of fraud or negligence, though it may be equally a question of fact, nevertheless belongs to the other class of such questions. It may well be possible to lay down a general principle on a matter such as this. For it is a matter which may be dealt with in abstracto, not necessarily in concreto. If, therefore, the decision is arrived at on principle, it will amount to an original precedent, and the question, together with every other essentially resembling it, will become for the future a question of law, predetermined by the rule thus established.
A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. “The only use of authorities or decided cases,” says Sir George Jessel, “is the establishment of some principle, which the judge can follow out in deciding the case before him.”[[165]] “The only thing,” says the same distinguished judge in another case, “in a judge’s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided.”[[166]]
This is the true significance of the familiar contrast between authority and principle. It is often said by judges that inasmuch as the matter before them is not covered by authority, they must decide it upon principle. The statement is a sure indication of the impending establishment of an original precedent. It implies two things: first, that where there is any authority on the point, that is to say, where the question is already one of law, the duty of the judge is simply to follow the path so marked out for him; and secondly, that if there is no authority, and if, therefore, the question is one of pure fact, it is his duty, if possible, to decide it upon principle, that is to say, to formulate some general rule and to act upon it, thereby creating law for the future. It may be, however, that the question is one which does not admit of being answered either on authority or on principle, and in such a case a specific or individual answer is alone possible, no rule of law being either applied or created.[[167]]
Although it is the duty of courts of justice to decide questions of fact on principle if they can, they must take care in this formulation of principles to limit themselves to the requirements of the case in hand. That is to say, they must not lay down principles which are not required for the due decision of the particular case, or which are wider than is necessary for this purpose. The only judicial principles which are authoritative are those which are thus relevant in their subject-matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them under the name of dicta or obiter dicta, things said by the way. The prerogative of judges is not to make law by formulating and declaring it—this pertains to the legislature—but to make law by applying it. Judicial declaration, unaccompanied by judicial application, is of no authority.
§ 68. The Sources of Judicial Principles.
Whence, then, do the courts derive those new principles, or rationes decidendi, by which they supplement the existing law? They are in truth nothing else than the principles of natural justice, practical expediency, and common sense. Judges are appointed to administer justice—justice according to law, so far as the law extends, but so far as there is no law, then justice according to nature. Where the civil law is deficient, the law of nature takes its place, and in so doing puts on its character also. But the rules of natural justice are not always such that any man may know them, and the light of nature is often but an uncertain guide. Instead of trusting to their own unguided instincts in formulating the rules of right and reason, the courts are therefore wisely in the habit of seeking guidance and assistance elsewhere. In establishing new principles, they willingly submit themselves to various persuasive influences which, though destitute of legal authority, have a good claim to respect and consideration. They accept a principle, for example, because they find it already embodied in some system of foreign law. For since it is so sanctioned and authenticated, it is presumably a just and reasonable one. In like manner the courts give credence to persuasive precedents, to judicial dicta, to the opinions of text-writers, and to any other forms of ethical or juridical doctrine which seem good to them. There is, however, one source of judicial principles which is of special importance, and calls for special notice. This is the analogy of pre-existing law. New rules are very often merely analogical extensions of the old. The courts seek as far as possible to make the new law the embodiment and expression of the spirit of the old—of the ratio juris, as the Romans called it. The whole thereby becomes a single and self-consistent body of legal doctrine, containing within itself an element of unity and of harmonious development. At the same time it must be remembered that analogy is lawfully followed only as a guide to the rules of natural justice. It has no independent claim to recognition. Wherever justice so requires, it is the duty of the courts, in making new law, to depart from the ratio juris antiqui, rather than servilely to follow it.
It is surprising how seldom we find in judicial utterances any explicit recognition of the fact that in deciding questions on principle, the courts are in reality searching out the rules and requirements of natural justice and public policy. The measure of the prevalence of such ethical over purely technical considerations is the measure in which case-law develops into a rational and tolerable system as opposed to an unreasoned product of authority and routine. Yet the official utterances of the law contain no adequate acknowledgment of this dependence on ethical influences. “The very considerations,” it has been well said, “which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life.”[[168]] The chief reason of this peculiarity is doubtless to be found in the fictitious declaratory theory of precedent, and in the forms of judicial expression and reasoning which this theory has made traditional. So long as judges affect to be looking for and declaring old law, they cannot adequately express the principles on which they are in reality making new.
§ 69. Respective Functions of Judges and Juries.
The division of judicial functions between judge and jury creates a difficulty in the theory of precedent which requires some consideration. It is commonly said that all questions of fact are for the jury, and all questions of law for the judge. But we have already seen that original precedents are answers to questions of fact, transforming them for the future into questions of law. Are such precedents, then, made by juries instead of by judges? It is clear that they neither are nor can be. No jury ever answers a question on principle; it gives decisions, but no reasons; it decides in concreto, not in abstracto. In this respect the judicial action of juries differs fundamentally from that of judges. The latter decide on principle, whenever this is possible; they formulate the ratio decidendi which underlies their decision; they strive after the general and the abstract, instead of adhering to the concrete and the individual. Hence it is that the decision of a judge may constitute a precedent, while that of a jury cannot. But in composite tribunals, where the jury decides the facts and the judge the law, how does the judge obtain any opportunity of establishing precedents and creating new law? If the matter is already governed by law, it will of course fall within his province; but if it is not already so governed, is it not a pure question of fact which must be submitted to the jury, to the total destruction of all opportunity of establishing any precedent in respect of it? The truth of the matter is that, although all questions of law are for the judge, it is very far from being true that all questions of fact are for the jury. There are very extensive and important portions of the sphere of fact which fall within the jurisdiction of the judge, and it is within those portions that the law-creating operation of judicial decisions takes place. No jury, for example, is ever asked to interpret a statute or, speaking generally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great department of case-law which has its origin in the judicial interpretation of statute law. The general rule—consistently acted on, though seldom expressly acknowledged—is that a judge will not submit to a jury any question which he is himself capable of answering on principle. Such a question he answers for himself; for since it can be answered on principle, it provides a fit occasion for the establishment of a precedent and a new rule of law. It ought to be a matter of law, and can only become what it ought to be, by being kept from the jury and answered in abstracto by the judge. The only questions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject-matter of those concrete and unreasoned decisions which juries give.[[169]]
We have said that this rule, though acted on, is not expressly acknowledged. The reason is that judges are enabled to avoid the acknowledgment through recourse to the declaratory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated proleptically as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authoritatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of the law by way of precedent is prevented from openly infringing upon the rights of juries to decide all questions which have not already been decided by the law.